More than half a century after the United Nations General Assembly's (UNGA) adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination (ICERD), efforts are underway to formulate a protocol to the landmark convention.Footnote 1 Much of the momentum for that endeavor comes from sustained local and global advocacy against racism.Footnote 2 An integral part of contemporary anti-racism efforts is a push for legal recognition of the intersectional dimensions of racial domination and subjugation in order to address the unique precarity of persons inhabiting marginalized axes of identities and experiences.Footnote 3 United Nations (UN) debates over repowering the ICERD have therefore featured proposals to intersectionalize the international legal response to racism and racial discrimination. The proposals have sought to address a number of intersectional experiences, but a proposal at the axis of race and religion has proven particularly contentious.Footnote 4 Emanating from the Global South and sponsored by state parties to the Organization of Islamic Conference (OIC), the African bloc, and several Asian states, that proposal has called for ICERD's recognition of religious discrimination as it intersects with racial discrimination in the experiences of persons who are simultaneously racial and religious minorities.Footnote 5 A dimension of that proposal, however, goes beyond calling attention to the race and religionFootnote 6 intersectional axis; it seeks international legal recognition of contemporary discrimination against religious minorities as a form of racism. Proponents cite the common practice of attributing homogenizing racial markers to internally diverse religious minority groups as a notable manifestation of this “racing” of “religion,”Footnote 7 and argue that such homogenization paves the way for “race-religion” discrimination.Footnote 8
Claims about the racialization of religious minorities have hardly been confined to UN debates. An emerging body of scholarship now argues that minority religions are deprived of international and national legal protections due to the exclusionary Euro-Christian foundations of the legal regime of religious liberty.Footnote 9 Religious minorities are not construed as religious persons, scholars argue, but instead law racializes these persons by homogenizing and ultimately demarcating these persons as a disfavored “other” to “civilized” society.Footnote 10 This process connotes racialization, but persistent international legal understanding of racism in phenotypical terms effectively preclude religious minorities from legal remedies. The consequence has been that religious minorities slip through a “protection gap,” deprived of recourse both in the legal protections against racial discrimination and those safeguarding religious liberty.Footnote 11
The case of Islamophobia has, in many ways, become central to advocacy and scholarship exploring this interplay of religious and racial discrimination.Footnote 12 The broader social and political conditions for anti-Muslim discrimination reveal a homogenization and attribution of racial markers to Muslims despite Muslims being culturally, nationally, and ethnically diverse. A foremost illustration is the case of the Muslim veil.Footnote 13 As they manifest in contemporary Europe and parts of North America, legal restrictions on the veil reveal a construction of the Muslim as a simultaneously racial and religious “other.”Footnote 14 The discourses legitimating those restrictions homogenize Muslims as an essentialized racial category, marking the Muslim “other” as foreign—and fundamentally different. It is not only that Muslim women are demographically more likely to be phenotypically Black or brown; rather, what is at issue here is the racialized construction of Muslimness by these legal restrictions. The discursive construction of the veil as innately Muslim,Footnote 15 and the framing of the covered Muslim woman's bid to live out that commitment to the veil as the antithesis of the universal(izing) civilizational ideals of liberty, security, and equality reveal the intricate entanglement of racial and religious othering. The point here is not that the veil is not a religious symbol; rather, I argue that by understanding the veil as a “peculiar” religious symbol, the state affirms its status as a foreign artifact that marks the alienness of the wearer. In this way, law and policy solutions to the “problem” of the veil mark Muslims as an undifferentiated outsider within the Western social order.Footnote 16
Both the international law of religious liberty and that concerning racial discrimination have been unresponsive to this interplay of racial and religious othering in restrictions on the veil. An overwhelming record of unsuccessful appeals to courts by veiled Muslim women, particularly in the context of the European Court of Human Rights (ECtHR),Footnote 17 reveal the afterlife of what critical histories insist was originally fashioned as a Euro-Christian religious liberty regime.Footnote 18 Notably, the Court has reasoned that the crucifix is a cultural symbol rather than a religious symbol, and accordingly upholding the presence of the crucifix in the public sphere.Footnote 19 At the same time, however, the ECtHR's jurisprudence on the Muslim veil has reflected a racializing interpretive stance in which the Court understands the veil at once as inherently Muslim and as intrinsically antithetical to the values of civilized society, and thus justifiably subject to restrictions. As a result, the Court's conception of “religion,” and of what religious traditions are worthy of protection is inextricably linked with a civilizational hierarchy that is undeniably racial and religious. Yet, the racializing jurisprudence of religious liberty coexists with a lack of meaningful recourse to racial equality protections due to the enduring phenotypical understandings of race in constructions of the ICERD.Footnote 20 Notably, the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) has demonstrated a reticence to understand claims of anti-Muslim discrimination in racial terms. CERD's jurisprudence construes the “interface between race and religion” as one of “double discrimination.”Footnote 21 However the double discrimination paradigm relies on a limiting intersectional lens that elides the racial dimensions of anti-Muslim discrimination and the mutual co-constitution of racial and religious othering in that experience. The result is a protection gap whereby claimants lack recourse in the contemporary regime of religious liberty and in legal framework against racial discrimination.Footnote 22
If the case of anti-Muslim racism features prominently in the current ICERD debates, the “racing of religion” is hardly limited to the experience of Muslims. Racialized religious minorities abound, with the experiences of Jews and Indigenous peoples finding expression in ongoing policy debates and scholarly literature.Footnote 23 For advocates and scholars of Islamophobia and other forms of racialized religious discrimination, the making of the ICERD protocol presents an opportunity to close the protection gap in the international legal framework that continues to preclude effective remedy.
There exists substantial opposition to the ICERD proposal. As expressed by the European Union delegation to the ICERD talks, the disapproval of the race-religion proposal stems in part from a concern that recognizing the interplay of racial and religious discrimination would unduly privilege religion to the detriment of other intersectional experiences.Footnote 24 Others have expressed concerns about the vulnerability of internal minorities within religious groups.Footnote 25 Skeptics also argue that the best response to the experience of discrimination by racialized religious groups would be to strengthen the international legal frameworks addressing racial discrimination and religious discrimination separately, rather than conflating the two forms of discrimination. Therefore, contrary to the proposal's close interlinkage of racial and religious discrimination, critics seek to disentangle these as disparate experiences deserving distinct legal responses.
This Article intervenes in the ongoing ICERD debate by looking to the past. I argue, first, that racial and religious othering were mutually co-constitutive in the colonial encounter, an encounter that critical genealogies have established as foundational to the making of modern international law. Footnote 26 Moreover, I contend that the legacy of that past survives in the continuing interplay of the racial and religious othering of the non-Euro-Christian other. I further show that the current proposal that seeks international legal recognition of the interplay between racial and religious othering is far from new. Iterations of that race-religion proposal surfaced at two defining moments in international legal history—of late, during the mid-twentieth-century negotiations that culminated in the ICERD, and previously, during the early twentieth-century negotiation of the League of Nations’ Covenant. It is striking that these past attempts have received little attention in the scholarly literature and in the ongoing ICERD debates. By illuminating the centrality of race-religion othering to the colonial encounter and analyzing how historical efforts to formulate an appropriate international legal response to that interplay foundered, this Article presents an imperial history of race-religion in international law. The narrative that follows reveals that the story of the racialization of religious minorities and the story of the protection gap that deprives these groups of international legal protection are far from separate narratives. Rather, these accounts are interconnected, bound in a story of othering that is foundational to the colonial origins of the international legal order. Recognizing the ways in which today's international legal framework (and the mounting challenge to its legitimacy) inhabits the history narrated in this Article is indispensable to imagining effective international legal protections for racialized religious minorities.
The Article proceeds as follows. Based on a close examination of imperial legal discourses in the nineteenth and early twentieth century, Part I illuminates the mutual co-constitution of race and religion in the colonial encounter. Part II spotlights two earlier attempts to link international legal protections for race and religion, revealing the “how” and the “why” behind those failed efforts. Arguing that the imperial history of race-religion othering lives on, Part III illuminates the enduring protection gap that continues to preclude effective recourse for racialized religious minorities in international law. Even well-intended juristic efforts that frame the problem of race-religion discrimination as one of an intersectional double discrimination, based on the distinct categories of race and religion, rather than as a mutually constitutive form of discrimination, contribute to the protection gap. Only an appreciation of the intimate interplay of the racial and religious othering of the non-Euro-Christian other is faithful to the historical chronicle, and only such an understanding can serve as a basis for constructive reform efforts.
I. Colonial Foundations
Acknowledging the racial cum religious hierarchy on which the modern law of nations was founded, the leading international legal jurist Lassa Francis Lawrence Oppenheim declared in 1905 that international law is “essentially a product of a Christian civilization.”Footnote 27 The Christian civilizational identity that Oppenheim referenced was not only religious, it was also racial. Revealing the racial dimensions of this Christian civilizational identity, John Westlake, Whewell Professor of International Law at Cambridge, had famously noted in 1894 that “the inflow of the white race cannot be stopped where there is land to cultivate, ore to be mined, commerce to be developed, sport to enjoy, curiosity to be satisfied. If any fanatical admirer of savage life argued that the whites should be kept out, he would only be driven to the same conclusion by another route, for a government on the spot would be necessary to keep them out.”Footnote 28 By setting a civilizational distinction between the “Christian white race” and the “savage” and “fanatical” other, European empire and the international law it engendered promoted an “indivisible race-religion discourse.”Footnote 29
That Christian civilizational identity, of course, elided tensions within the European project, including Catholic-Protestant struggles. Yet, global imperial ambitions and, ultimately, imperial expansion required a shift in emphasis from interconfessional difference to a Christian European versus others distinction—at least on the global stage—consequently cementing the racialization of religious difference in international thought. Indeed, anthropologist Peter Van der Veer roots the nineteenth-century emergence of interconfessional toleration in Europe to this quest to produce a Christian civilizational identity that was so integral to Europe's imperial expansion. Rather than a manifestation of an ideological commitment to religious toleration, Van der Veer argues that the enfranchisement of Christian minorities in Europe such as Catholics in England sought to shift political loyalty from religious identity to a European Christian identity.Footnote 30 With that shift, the opposition between Britain as a Protestant nation and France as a Catholic nation became less relevant than “the opposition between a Christian, civilized nation and colonized peoples without civilized religions.”Footnote 31 The religious dimensions of racial differentiation and subordination and the associated racialization of religious differentiation and subordination would come to animate global European imperialism.
European colonial ambition was vast; that colonial project notably unfolded with particular horrors in the Americas as European settlers encountered Indigenous populations.Footnote 32 The settler colonial state regarded Indigenous faiths as “alien to Western law, politics, and religion.”Footnote 33 That legal construction of alienness and the ensuing denigration of Indigenous forms of spirituality was as much racial as it was religious.Footnote 34 Regarded as “heathen” practices, Indigenous spiritual practices were not considered religions worthy of toleration. Rather, the settler colonial state understood those so-called heathen practices as bound in the inherent nature of the uncivilized “Indian,” as much biological as it was cultural. The task then was to design a civilizational project to “kill the Indian,” especially in “the child.”Footnote 35 That project at once homogenized the “Indian,” eliding a rich history of diverse practices, even as it sought to convert these populations to Christianity exclusively on European terms.Footnote 36 The criminalization of Indigenous religious practices, the destruction of Indigenous sacred sites, and the horrendous history of residential schools were foremost in the arsenal of that colonial civilizational project whose history continues to be told and retold.Footnote 37
In many ways, however, the lesser-known story of the colonial race-religion project in nineteenth- and twentieth-century Africa offers an unparalleled insight into the international legal politics of the racialization of religious difference, especially as it concerns the contemporary ICERD debates. Africa was, of course, “Christian Europe's” quintessential “other.” The continent was not only regarded as uncivilized but also as having been cut off from civilization, hence G. W. F. Hegel's well-known conclusion that the continent was wrapped in the “dark mantle of night.”Footnote 38 Africa, the historian Thomas Prasch explains, was regarded as “the blankest continent on the imperial map.”Footnote 39 That presumption of Africa's “blank” state hinged on a civilizational othering that was simultaneously racial and religious. The mutual constitution of racial and religious othering was evident in the imperial discourse that permeated the series of conferences convened in Berlin, Germany from 1884–1885 to negotiate the parceling out of Africa among European powers.Footnote 40 The Berlin processes were founded on a premise of the superiority of the “idea of Western Christian civilization.”Footnote 41 Delegates to the talks were “firmly convinced of the close connection between Western culture and Christianity,” and for them, “the absolute cultural superiority of the Christian West was not a matter of debate.”Footnote 42 As reflected in the Berlin talks, the colonial project was messy and contested, and interests were frequently discordant rather than in alignment. Yet, at the heart of the African colonial venture was a race-religion project that sought to Christianize Africa on European terms.Footnote 43
Berlin delegates understood Europe's first task to be the advent of “civilization” to “uncivilized” peoples.Footnote 44 Many delegates understood the vehicle of that civilization to be the Christian missionary project. The racial and religious othering that infused the Berlin discourse found theological and scientific justifications, which then served to legitimate the colonial enterprise. Notably, many delegates embraced the theological understanding that “blacks had inherited Noah's curse (Genesis 9:25) from their alleged ancestor, Ham” leading to a “divine ‘chastisement’ of Africa.”Footnote 45 Christian missionaries involved in the Berlin processes also understood the missionizing project as hearkening to Luke's admonition “to light those living in darkness” (Luke 1:79).Footnote 46 There were, therefore, racial dimensions to the religious othering and religious dimensions to the racial othering on which the civilizational distinction was based. Consequently, the civilizational distinction that animated the colonial project hinged on an indivisible race-religion discourse.
That Christian civilizational project—and the discourse it produced—served to unite participants at the Berlin talks even as rivalry between European states and different Christian confessions simmered in the background. The work of French Bishop Charles Maryoa Allemand Lavigerie (1825–1892), Archbishop of Algiers and founder of the missionary society, White Fathers, is illustrative.Footnote 47 Although Lavigerie was intent on having French Catholics outperform Protestants in acquiring dominion over Central and East Africa, he, like several other leading missionaries, gave primacy to the common European cause of founding a “Christian kingdom” in the heart of Africa.Footnote 48 This priority of the European Christian project led to Lavigerie's cooperation with English Protestant missionaries, including those seeking to expand their missionary field in those parts of Africa that Lavigerie's White Fathers had set its sights on.Footnote 49 In fact, it was that inclination that undergirded the Belgian King Leopold's Association Internationale Africaine, which was created to coordinate, and possibly harmonize, European imperial interests on the continent.Footnote 50
The Christian civilizational project found expression in law. A prominent example is the legal instrument that resulted from the Berlin negotiations—the Berlin General Act. Article 6 of the Act sought to advance the Christian civilizational project in a way that reveals the race-religion foundations of the colonial enterprise. In Article 6, the European signatories to the Berlin Act expressed their commitment, “to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being . . . .”Footnote 51 The signatories further committed to protecting all “religious, scientific or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization.”Footnote 52 Even as this protection was ostensibly extended to all “creeds or nations” in response to the advocacy of Ottoman representatives, this protection was far from universal or inclusive of the faiths of the colonized population. Article 6 understood Africans as uncivilized and in need of a civilization that would be delivered by the Christianizing mission. The Christianizing mission espoused by Article 6, therefore, evoked European civilizational superiority, an idea that translated into a race-religion hierarchy. Reminiscent of the earlier discourse on Indigenous peoples, the entanglement of race and religion is inherent in empire's construction of the African “native.” By legal definition, the “native” was Black, African, and non-Christian—always necessarily an “other” to the European.Footnote 53
This legal definition produced tensions in the colonial project between those who sought to create sociolegal conditions that would live up to this definition of “natives” by preventing Christian proselytization and those who sought to convert “natives” to Christians—even as they kept alive the premise that the African could not attain the stature of European Christianity.Footnote 54 I return to that point later below. For now, it is important to note that for all of Europe's homogenizing gaze, the “native” did not operate as an undifferentiated category in practice. There were degrees of othering, culminating in intra-“native” distinctions.Footnote 55 Notably, Islam was regarded as “the quintessential other,”Footnote 56 leading Muslim African societies to be of primacy to the missionizing—and more broadly, to the imperial project.Footnote 57 Rather than severing the link between race and religion in the construction of the “native” (and the integrity of both identities to the colonial encounter), these nuances only underscore the shifting dialectic between race and religion in the construction of Africans. The intra-“native” differentiations therefore illuminate degrees of precarity while simultaneously underscoring the centrality of race-religion othering to Europe's colonial subjugation of Africa.
This interplay of religion and race in the “native” identity made it impossible for “natives” to enjoy religious liberty protections even though the Berlin Act nominally extended those protections to them through its guarantee of “freedom of conscience and religious toleration.”Footnote 58 In fact, by declaring that the goal of the provision was to “bring home” to Africans the “benefit of civilization,” the Act expressed the view prevalent in Berlin—that facilitating conditions for an African evolution toward a Christian civilization was the ultimate mission. For Lavigerie and several agents of imperialism involved in the Berlin processes, therefore, the spread of the Gospel was “the prime factor in the moral regeneration of the peoples of Africa.”Footnote 59 That moral regeneration project was infused by both racial and religious ideals and embarked on the making of colonial subjects on those terms.
One important manifestation of that race-religion project was France's crusade against the Muslim veil in mid-twentieth century French Colonial Algeria.Footnote 60 An uncritical reading of the French project might understand it to be devoid of the religious project that Lavigerie and his collaborators sought to promote, and regard that project as a secular endeavor informed by a post-French-Revolution aversion to the Church. In that reading, the French unveiling project was racial, and the antithesis of a religious endeavor. In fact, however, the French agenda was at once racial and religious. Indeed, the image of the veiled Muslim woman was a racialized one, functioning as “the negative mirror in which western constructions of identity and gender can be positively reflected.”Footnote 61 The French colonial gaze projected gender oppression onto Islam and naturalized that oppression onto the bodies of Muslim women, effectively racializing the veil and Muslims. Religious othering was bound up with that racializing project. Crucially, even as the French colonizer bandied justifications of laïcité, France's unique and historically contingent brand of secularism, that project was hardly neutral of religion. In fact, the so-called secular public space that required unveiling contradicted only some religions and not others, with the consequence that it functioned to preclude only the racial other's religious expression.Footnote 62 By doing so, the race-religion discourse not only survived, but also thrived in the French project.
As I alluded to earlier, the idea that Christianity could regenerate the paradigmatic racial and religious other—the African—was not uncontested within the ranks of the European colonizers. Another view opposed the Christianization project because it regarded Africans as lacking the capacity to attain the civilizational peak of Christianity. In fact, it regarded efforts to promote such civilizational ascent not only as doomed to fail, but also as carrying the risk of provoking anarchy.Footnote 63
Perhaps no event provoked that skepticism in the Christianization project, which pre-dated empire's formal dominion in Africa, more than the 1857 Sepoy revolt in British India. Understood in important sections of the colonial administration as an Indigenous revolt against empire's Christianizing and anglicizing project, the mutiny was followed by a shift in colonial governance attitudes and design. With that shift, the prior widespread support for an anglicizing project gave way to an instrumentalist deference to Indigenous faiths and institutions to maintain empire's tenuous hold. In Africa, that British anxiety would manifest in certain administrative circles as an inclination to grant ceremonial deference to Islam and shield the Muslim faithful from Christian missionary influence. Even as the memory of the Indian rebellion lingered, administrators justified their commitment to “preserving” Islam on the basis that it was suited to Africans’ primitive nature. Notably, Frederick Lugard, the first Colonial Governor of Northern Nigeria and prominent promoter of this idea, was convinced that Islam was “incapable of the highest development” while also regarding that underdevelopment as “suit[ed to] the limitations of the people.”Footnote 64 The Lugardian inclination set off a contestation within the imperial project. Yet, it is crucial to keep in mind that both positions—the Lugardian aversion to conversions to Christianity and the Lavigerie championing of an imperial proselytization project—rested on the same premise. This premise was that the African was at the same time a racial and religious other, and that the most extreme of that racial and religious debasement represented by the African could be found in the African Muslim. If, for Lugardians, that premise led to a conclusion that Africans were better left as Muslims, for missionaries, the African condition necessitated bringing the “native” race into the light. Yet, even for the latter, the African could not completely transcend the darkness.Footnote 65 In all these projects, therefore, the paradigmatic racial cum religious other could never attain Europe's civilizational standing.
Pan-Africanist thought recognized this race-religion matrix and its centrality to the discourse that legitimated imperialism. A notable early exposition of this critique of the race-religion hierarchy can be found in Edward Wilmot Blyden's Christianity, Islam, and the Negro Race, a collection of writings first published in 1887, but which he began to author in the 1870s, before the Berlin talks.Footnote 66 After all, while the Berlin processes institutionalized the race-religion hierarchy to facilitate the parceling out of African territory, the race-religion discourse preceded the Scramble for Africa that Berlin sought to mediate. Writing in nineteenth-century Liberia, decades after African-American slaves first began to be repatriated to that territory, West Indies-born Blyden put the racial and religious hierarchy at the center of the processes of domination that subjugated “negro” peoples.Footnote 67 Although Blyden was a Presbyterian minister, he was unsparing in his criticism of the European missionary enterprise in Africa due to what he regarded as its eurocentrism.Footnote 68 In Blyden's view, that eurocentrism meant that even as missionaries proselytized “negros,” they never wholly expected that audience of their proselytism to attain European standing. That imperial project recognized negros as “naturally and inevitably and eternally inferior.”Footnote 69 The notions of hierarchy that undergirded the European imperial enterprise therefore already wrote religious difference into racial difference. Ultimately, Blyden would depart from the Presbytery ministry, renaming himself a “Minister of Truth”Footnote 70 and setting forth a vision of emancipation that entailed dismantling the close links between race and religion that doomed the European missionary enterprise in Africa.Footnote 71 He would eventually call for an alliance between Islam and an African form of Christianity shorn of the European mission as the vehicle for this emancipation.Footnote 72 Ethiopianism, the idea of an Africanist Christianity advanced in its early form by Blyden, would later become a feature of Pan-Africanist thought and, ultimately, be integral to decolonization efforts in the mid-twentieth century.
As I will show below, later Pan-Africanist critique of imperialism would not lose sight of its early appreciation of the links between racial and religious othering in the hierarchies that legitimated imperialism. Indeed, that awareness of the mutual co-constitution of racial and religious discrimination in the colonial encounter would culminate in a demand for an interlinked international legal protection for racial and religious discrimination as African states began the process of formal decolonization in the mid-twentieth century. Before venturing into that discussion, I turn to an important debate over the race-religion question that unfolded on the global stage in the early decades of the twentieth century. That debate reveals an awareness of imperialism's race-religion hierarchies well beyond the shores of Africa and spotlights an early attempt to challenge that domination by interconnecting racial and religious protections in international law.
II. The International Legal Politics of Racing Religion
A. Racing Religion at the League
The race-religion hierarchy—and subordination—that emerged from race-religion othering was integral to the European imperialist venture, and to the international legal ideas that justified and sustained colonialism.Footnote 73 As that history unfolded globally, the first discernible modern attempt to link international legal protections for race and religion surfaced during the 1919 negotiations of the Covenant of the League of Nations. To understand the stakes—and ultimate fate—of that proposal, it is crucial to note that it was preceded by a religious equality proposal. Destined for inclusion in Article 18 of the Covenant, the declaration of religious equality and positive protections for the principle of religious freedom and liberty of conscience had the firm support of the two leading voices in the deliberations—the United States and Britain. Indeed, U.S. President Woodrow Wilson, who was the chair of the commission deliberating on the Covenant, was particularly vocal in his support for a religious liberty provision.Footnote 74 On its part, Britain proposed a recognition of religious liberty as a preambular declaration. Tabled by its representatives, Robert Cecil and Jan Smuts, the British proposal provided: “[The High Contracting Parties] unite in solemn recognition of the principle of freedom of conscience and religion.”Footnote 75
The British and American proposals for international legal protection for religious liberty ostensibly sought to establish a more inclusive regime of religious liberty than the above-referenced Article 6 of the Berlin Act. However, subsequent events reveal that both provisions were far from the globally inclusive regime that they seemed; rather, like the Berlin Act, that notion of religious liberty was grounded in an idea of Western Christian civilization and it envisioned religious liberty protections as a prerogative of that tradition.
The untroubled voyage of the religious liberty proposal toward inclusion in the League Covenant was thwarted by a Japanese proposal to link that provision with racial protections. The representative of Japan and sponsor of the proposal, Baron Makino, justified his proposition by arguing that “racial and religious animosities have constituted a fruitful source of trouble and warfare among different peoples.”Footnote 76 Makino praised the U.S.-sponsored provision for its recognition of the religious dimensions of international tensions, and violence, but queried its omission of the interlinked question of race.Footnote 77 To remedy what he understood as a defect in the religious liberty provision, Makino proposed a supplemental provision that read:
The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord, as soon as possible, to all alien nationals of states members of the League equal and just treatment in every respect, making no distinction, either in law or in fact, on account of their race or nationality.Footnote 78
Makino's proposal did not reflect today's sophisticated postulations of the racialization of religion; however, it was firmly rooted in a recognition of the intimacy of racial and religious discrimination in the world the League inhabited.Footnote 79 Under those circumstances, to entrench protections for religion in international law without guaranteeing protections for racial equality and justice was to institutionalize a flawed legal regime. Makino consequently proposed that the League Covenant treat the challenge of racial and religious discrimination “hand in hand” rather than as distinct challenges requiring separate protectional mechanisms and remedies.Footnote 80
The Japanese proposal was roundly defeated.Footnote 81 The loudest resistance to the race proposal came from the sponsors of the religious liberty provision—the United Kingdom and the United States. The U.S. opposition appears to have arisen from an immediate concern that the Japanese proposal was a threat to domestic laws that limited immigration from East Asia.Footnote 82 In the case of the UK, widespread anti-Asian prejudice was not only limited to the seat of empire, but also manifested in its overseas imperial holdings, particularly in Australia and New Zealand.Footnote 83 In fact, resistance to the Japanese proposal was fiercest among British administrators in Australia. The Australian Prime Minister, William Morris Hughes, was the most vocal in opposing the Japanese proposal. Hughes worried that Australia was especially vulnerable to the threat bound to result from the Japanese wielding of a race-religion provision to challenge anti-Asian exclusionary policies. In Hughes's understanding, this threat was the incursion of Asians into Australia and the demise of the “White Australia” policy that he and many administrators cherished and that was codified in a discriminatory immigration legislation.Footnote 84
Australian anxiety was heightened by its geographical location, but it was not alone in its alarm. In the face of the Japanese pairing of the religious equality proposal with that of racial equality, Woodrow Wilson hastily retreated from his sponsorship of the religious equality provision. U.S. hostility to the Japanese proposal did not appear to have been motivated a concern that it would be challenged by its internal minorities. After all, the Japanese proposal and the emerging League design was unambiguous in its investing of states rather than individuals with legal protections (and obligations). That design choice made it impossible for intrastate minorities to use any resulting international legal provisions against their own state or against a foreign state without the mediation of a state. U.S. concern with a potential challenge by internal minorities through the tool of international law would emerge only in later years with the onset of the human rights regime. In the context of the League negotiations, the U.S. opposition was animated by concerns that legislation espousing anti-Asian prejudice, including those restricting immigration, would be challenged by Asian states.
The Japanese linking of racial and religious equality provisions laid bare the intimacy of racial and religious othering undergirding global subjugation by the imperialist states that thwarted the Japanese proposal. Even in the absence of much of the colonized world at the talks, and even though Japan was also culpable of imperial subjugation, Baron Makino's argument evoked the race-religion distinctions and violence that animated imperialism. It is therefore not surprising that leading imperialist states found the Japanese proposal provocative. Indeed, the British Representative, Lord Robert Cecil, described the proposal as “highly controversial.”Footnote 85 The Japanese proposal was effectively neutralized in the face of intense opposition.
The events that would unfold in the years between the World War I and World War II, the so-called interwar years, would only underscore the legal politics of securing international legal recognition of the interplay of racial and religious discrimination. Even as the victors of World War I thwarted the Japanese efforts to interlink race-religion protections in the League Covenant, it was impossible to ignore the ravages that race-religion othering and discrimination had unleashed in Europe. Age-long—and by then, systemic—European anti-Semitism unleashed violence on Jewish peoples across the continent. That situation was an undeniable manifestation of the mutual constitution of racial and religious otheringFootnote 86 to which Baron Makino drew attention; yet the response of the victors was not to entrench that recognition in the League Covenant. Rather, the Covenant instituted protections within “minority treaties,” which were bilateral agreements between the leading victors of World War I and several defeated states.Footnote 87 With some divergence in their framing, those treaties generally guaranteed the rights of “racial, religious or linguistic minorities,”Footnote 88 and imposed on the states subject to the treaties the international obligation to protect these minorities. That process began with the Polish Minority Treaty, which sought to protect Jewish minorities in Poland, and came to extend to newly formed states or others that had acquired new territory.Footnote 89 The United States was a key player in the making of the minority treaties, including through its leading role in the Polish Treaty in respect of which the United States proposed that the treaty protect “racial and religious minorities” from discrimination on the basis of “race or religion.”Footnote 90 Despite the interchangeable use of the disjunctive “or” and the conjunctive “and” in the U.S. proposals and the minority treaties, the context of the interwar period was that racial and religious interpretation were understood as interlinked.Footnote 91
This acknowledgement of the nexus between racial and religious discrimination was, however, not general. In many ways, the minority treaties’ recognition of the interplay between racial and religious discrimination was reflective of an interlude rather than indicative of an established international legal approach.Footnote 92 Notably, that recognition did not make it into the Treaty of Versailles itself, therefore absolving the World War I victors from undertaking legal protections in relation to such minorities in their territory. Neither were the victors who had obtained new territory asked to contract separate minority treaties to guarantee the rights of minorities within their borders. As such, although Austria, Hungary, Bulgaria, and Turkey were made to sign treaties, Belgium, France, and Denmark were not asked to do so. Footnote 93 Neither was Germany although it had been technically defeated.Footnote 94 If one objection to Makino's race-religion proposal during the League Covenant negotiations was that it unduly interfered in the affairs of states, such a response was not an option for those state subjects of the minority treaties. This selective imposition of the treaties undermined the legitimacy of the system, and with it any redemptive possibility of serving as a precedent for a robust international legal recognition of the interplay between racial and religious discrimination.
B. Making the ICERD in the Post-war Years
Even as a mutually imbricated religious and racial othering continued to justify European decimation and dispossession of overseas peoples, the tenuous minority treaty regime forged in Europe in the interwar years did not shield the continent from the consequence of race-religion prejudice. The events of World War II and the horrifying atrocities of the Holocaust stripped all pretense of an international legal regime protecting racialized religious groups even as it underscored the close ties between racial and religious othering.
Three processes would shape the direction of the debate over an interlinked international legal protection for race and religion as they unfolded in the aftermath of World War II on the site of the United Nations, which succeeded the failed League of Nations. The first was the memory of the Holocaust and the credible fears that anti-Semitism, including in its Nazi form, had survived the horrors of the Holocaust. The second was the unfolding of the global process of decolonization, which saw much of the world emerge from the clutches of their European imperial overlords and join the United Nations as formally independent states and vocal critics of the imperial discourses that justified colonialism. The third was the broader political context of the Cold War between the East and West, signified by the USSR and the United States. Together, these three processes came to catalyze the alliances and inspire the arguments that featured in the UN debate in the post-World War II years.
References to racial and religious protections were common in the international legal instruments that emerged in the aftermath of World War II. The 1945 UN Charter, in its Article 1, declared one of the purposes of the UN as “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”Footnote 95 The Universal Declaration of Human Rights (UDHR), which followed three years later, evinced a similar notion.Footnote 96 As provisions that set out race and religion among a longer laundry list of individual equality protections integral to the emerging human rights regime, those references hardly bore witness to the close ties of racial and religious discrimination. These documents accordingly failed to embody protections for race-religion discrimination. Yet, the international legal regime of religious liberty that emerged in the immediate aftermath of World War II underscored the intimate connections between racial and religious disparities in the international imperial order already revealed in the Berlin and League processes. Indeed, the earliest of these provisions that would come to be regarded as the encapsulation of the international human right to religious liberty, Article 18 of the UDHR, was a product of the advocacy by international Protestant ecumenists who sought to protect Christian missions’ access to overseas territories.Footnote 97
Contesting received narratives of Article 18, critical histories question that provision's claim to universality by revealing its “Christian preferentialist notion of religious liberty.”Footnote 98 Backed by those who wanted to protect the right to proselytize and change religion, Article 18 sought to sustain the race-religion othering that instantiated Europe's global imperial expansion.Footnote 99 To the European Christian ecumenical promoters of Article 18, that provision was intended to dismantle barriers to the mission field and to counter what they viewed as the intractable opposition of faiths like Islam that embodied legal proscriptions of and obstacles to conversion.Footnote 100 Missionary frustration in Muslim Africa was in many ways central to the advocacy—although Muslim Africans were by no means the only religious other that inspired Article 18.Footnote 101 Ecumenists sought to advance the project of spreading the gospel, a project that was, as shown above, simultaneously racial as it was religious.Footnote 102 As such, the international legal regime birthed by the UDHR (and by implication, the United Nations) saw the flourishing of race-religion othering even as it continued to elide those interconnections, denying it of international legal recognition and protection.Footnote 103
This was the backdrop against which a series of anti-Semitic incidents occurred in the winter of 1959–1960, shaking Europe and raising global fears of a resurgence of Nazi ideology.Footnote 104 In an immediate response, the UN General Assembly adopted a Declaration against religious and racial discrimination on December 12, 1960. In addition to the UNGA declaration, the UN Subcommission on the Prevention of Discrimination and Protection of Minorities issued a resolution that was noteworthy in its recognition of the interplay between racial and religious othering. The Subcommission declared a “deep concern” with the “manifestations of antisemitism and other forms of racial and national hatred and religious and racial prejudices which have occurred in various countries reminiscent of the crimes and outrages committed by the Nazis prior to and during the Second World War.”Footnote 105 The Subcommission's choice of the term “prejudice” not only emphasized the interplay of racial and religious othering, but also rooted that interplay in an “internal pathology” rather than a mere social deviance.Footnote 106 By so doing, the Subcommission appeared to acknowledge the extent of the problem of racial and religious prejudice in social, and indirectly, in international interactions. The UNGA and UN Subcommission resolutions were important interventions, but they hardly created enforceable international legal obligations or protections. The opportunity created by the resolutions would, however, be seized by a core group of recent entrants to the United Nations—newly decolonized African states. Armed with the memory of the racial cum religious othering foundations of the colonial encounter, that group would embark on concerted effort to craft an international legal provision that addressed the question of racial and religious subordination.
The 1950s and 1960s witnessed intensified successful advocacy for decolonization. That effort produced tangible results that increased the discursive clout, even if not the political power, of the rapidly decolonizing Global South. In Africa, for instance, although only ten African states attained Independence in the 1950s, that number had increased to forty-eight by the 1960s.Footnote 107 For the bloc of countries critical of European imperialism who found themselves with seats at the United Nations, the critique of colonialism and advocacy for decolonization was very much linked to the denunciation of the civilizational othering that justified the European colonization of Africa. That civilizational distinction, it was recognized, was at once racial as it was cultural, subordinating the worldview, including religious and cultural practices, of the colonized population. This understanding is evident in the discourse of the first Pan-African Congresses convened in 1900 and continuing through the fifth celebrated 1945 Manchester Pan-African Congress that would be followed by the wave of decolonization across Africa.Footnote 108 The 1921 Congress held in Paris, for instance, sought “the recognition of civilized men as civilized despite their race or colour” while also calling for “[f]reedom in their own religion and social customs and with the right to be different and nonconformist.”Footnote 109
Not all the Pan-African Congresses explicitly distilled the civilizational difference justification that legitimated imperialism into race-religion terms. Yet, there is no doubt that these gatherings espoused a comprehensive understanding of racial discrimination. These gatherings reflected powerful Pan-Africanist critiques emerging from the continent, critiques that denounced colonialism as a form of domination powered by an indivisible race-religion othering.Footnote 110 Notable in particular was the rise of Indigenous African (“Ethiopianist”) Churches who rejected what they understood as the European missionary colonial complex.Footnote 111 Just like early Pan-Africanist, Edward Blyden, had since argued, these Ethiopianists insisted that the European Christian mission was integral to European imperialism and predicated on the simultaneous racial and religious subjugation of the African. Premised on this critique, Ethiopianism sought to foster a radical political consciousness that would dismantle that race-religion hierarchy even as it embraced Christianity.Footnote 112 Ethiopianists successfully argued that Christianity could be authentically African with the consequence that it sought to disentangle the race-religion project that lay at the heart of the imperialist missionary enterprise. These Pan-Africanist arguments would go on to inspire advocacy to end racial discrimination through a variety of proposals, including through a bid that came out of the Manchester gathering to criminalize racial discrimination in all its forms.Footnote 113
It was from the Pan-Africanist segment of the United Nations, largely comprised of states that attained Independence following Manchester, that a proposal emerged for the United Nations to codify an international prohibition on racial discrimination. Officially presented at the 17th session of the General Assembly 1962, that proposal encapsulated the African group's critique of the racist foundations of the colonial enterprise and their vision of the deployment of international law to neutralize the racial hierarchy that was intrinsic to the foundations of colonialism, and therefore, of the international legal order. As noted earlier, that understanding of the racial othering on which the European imperial order was founded was not unidimensional. Instead, it rightly apprehended the broader civilizational distinction that justified the colonization project as going far beyond somatic dimensions of racial othering to include pseudo-theological notions. Religion was foundational to that broader understanding. Unsurprisingly, when the proposal for an international convention ending racial discrimination was tabled at the seventeenth session of the UNGA, it included protections against religious discrimination as part of the broader protection against racial discrimination. By interlinking both protections, the proposal took the view that racial and religious othering were mutually constitutive—rather than merely intersectional.
The race-religion proposal had support from elsewhere in the decolonizing world, specifically from Asia and the Middle East.Footnote 114 The recently created state of Israel also supported it. After all, leading Jewish activists who were foremost in the making of Israel were keenly aware of the interplay of racial and religious discrimination in anti-Semitism.Footnote 115 Addressing the UN Commission on Human Rights, Israeli representative Moshe Bartur argued that “there was no clear line among racial, ethnic, and religious discrimination, and that all were diverse aspects of the same ugly mixture of hatred and barbarism from which humanity, in spite of its astonishing technological and scientific progress.”Footnote 116 Despite the strong support from the part of the world that had long been subjected to race-religion demarcations (and subordination), the proposal foundered under the weight of the geostrategic Cold War rivalry within Euro-America.
The UN debates unfolded as the Cold War was heating up between the two post-World War II imperial powers—the United States and USSR. The UN deliberation over the race-religion proposal became an important site for that broader geopolitical rivalry. Jousting at the United Nations, the rivals sought to uncouple the racial and religious protections under debate by advocating the primacy of one over the other in ways that advanced each state's geostrategic goals. As it had done during the League negotiations (and in the making of the minorities treaties), the United States positioned itself as the champion of religious liberty, throwing its weight behind the proposal to entrench religion into the convention. Even as it took great care to cement its image as the defender of religious freedom, the race dimensions of the proposal posed a conundrum for the United States.Footnote 117 After all, the negotiations were unfolding before the United Nations at a time when the world's attention was fixed on both the systemic oppression of African Americans and on the violent backlash against the modest gains of the civil rights movement. Beyond the embarrassment of having to defend the widely publicized situation at home, the U.S. resistance to the racial discrimination provision was also informed by its strategic alliance with Apartheid South Africa. Nevertheless, the United States recognized the need to balance that alliance with South Africa, which included the siting of the Azores military base and other military facilities, with the strategic benefits of cultivating favorable relations with the rest of the continent.Footnote 118 Even if the United States had the power to effectively neutralize any backlash that may have arisen from alienating African states, the broader momentum for decolonization and the successful centralization of the denunciation of racial discrimination to the critique of colonialism meant that an opposition to racial equality would have been impolitic in those years. Given this situation at home and the international context, all the Unites States could hope to do was to downplay the racial equality dimensions of the proposal rather than to adopt a vocal oppositional stance.
At the same time, however, the religious discrimination dimension of the proposal offered an opportunity for the United States to further its own international reputation as a defender of religious liberty. Indeed, U.S. statesmen and leading clergy who held prominent positions in the international ecumenical (and missionary) movement made religious freedom central to the post-war international order.Footnote 119 That rhetoric survived even as the legal politics of the frustrated Japanese race provision, the overt biases of the minority treaty regime, and the unmistakable Christian flavor of the UDHR's Article 18 called into question the religious freedom project's claim to neutrality. U.S. support for the religious liberty project in the moment after World War II was undoubtedly rooted in a longer story advancing a Euro-American Christian notion of faith. Yet, the United States constantly cast the USSR as a foe of religious freedom, juxtaposing it with its own ostensibly superior credentials on religious protections.Footnote 120 Even as the United States criticized the USSR's “godless communism” and its repression of religion and religious persons, it especially condemned the USSR for its treatment of Jewish minorities. Crucially, the United States sought to emphasize the USSR's anti-Semitism problem as that of religious liberty and sought to downplay the racial dimensions of anti-Jewish prejudice. By so doing, the United States might have hoped to divert attention from its own failings at home.
The USSR responded by rejecting the religious liberty dimensions of the proposal and emphasizing instead the racial equality provisions. Turning the tables, the USSR constantly brought up the question of anti-Black racism and the situation of African Americans in the United States, arguing that the pressing question requiring international action was that of racial discrimination as depicted in its most extreme form in the United States. Like the United States, the USSR therefore sought to delink the question of racial and religious discrimination, choosing either one to the exclusion of the other, and wielding each against the other.
UN discussions on the floor of the General Assembly and before the relevant UN Subcommission are replete with bickering not only between the United States and USSR but also more generally between the East and the West over the race-religion question. A 1962 exchange reveals the broader East-West dimensions of the debate.Footnote 121 During the UN General Assembly's November 1, 1962 meeting, the Australian representative to the United Nations, H. D. White, blatantly charged the USSR with anti-Semitism. The Soviet representative, T. N. Nikolayeva, however, responded by describing the Australian charge as “filthy calumnies.”Footnote 122 Seeking to shift scrutiny to the United States, the Soviet representative charged the United States with “rank racism,” citing the ongoing white opposition to the integration of Mississippi schools at the time.Footnote 123 U.S. representative Marietta Tree responded that the Mississippi situation reflected a gradual “step up the long, rugged road toward gaining recognition of the dignity of the individual everywhere.”Footnote 124
On the other hand, Western imperial powers doubled down on their criticism of Soviet anti-Semitism. The Australian representative alleged systematic Soviet elimination of Jews by sentencing an “unduly high proportion” of Jews to death for economic offenses.Footnote 125 Australia also cited Soviet restrictions on Jewish religious practices, such as the state ban on unleavened bread for the 1962 Passover observance, among other instances of curtailment of religious liberty. The British representative reiterated this criticism, expressing Britain's “profound regret that intolerance of religious practice exists in the Soviet Union and other Eastern European countries.”Footnote 126 The Soviet bloc responded to these comments by criticizing Western colonialism. Nikolayeva argued that the scrutiny of the Soviet Union aimed to draw attention away from “the racial discrimination imposed by colonialism.”Footnote 127 The Soviet Union then emphatically denied allegations of anti-Semitism and insisted that Jewish peoples thrived in the Soviet Union, as evidenced by the high Jewish composition of professional, artistic, and political positions.Footnote 128 These accusations and counter-accusations became so common that both the United States and USSR representatives came to predict them and prepare responses in advance.Footnote 129 The East-West antagonism, which significantly intensified between the United States and the USSR,Footnote 130 greatly strained the UN efforts, ultimately withering the strength of the proposal for an international legal instrument recognizing the interplay between racial and religious discrimination.
The African group championing the proposal expressed its frustration with the U.S./USSR bid to decouple the question of religious othering from that of racial othering.Footnote 131 The African Group was, however, careful to avoid appearances of taking sides in the debate between the United States and the USSR.Footnote 132 That attitude was an expression of the overall “non-aligned” posture of many of the newly decolonized world to the Cold War.Footnote 133 As these newly independent states emerged from the clutches of imperial dominion, they understood that substantive decolonization had not been attained even if formal colonialism was a thing of the past. Former European imperial powers continued to exert superior authority in global affairs, including at the United Nations, and several of these former colonizers continued to exercise political, social, and economic force over the decolonizing world. The Non-Aligned Movement was an attempt by these decolonizing states to assert their independence in the power tussle between European powers, and to seek to forge connections with states in the formerly colonized and decolonizing world. That non-aligned posture called for an aloofness from—and non-descent into—the U.S.-USSR debate even as the African Group criticized the hegemons’ politicization of the race-religion question.
Beyond the challenges posed by the U.S.-USSR sparring, the proposal ran into obstacles even in those quarters where it had previously enjoyed support. Escalations in the Middle East over the occupation of Palestine had begun to erode the proposal's favor among its Middle East backers. The climate of suspicion in the Middle East was at once fueled by and incensed broader geopolitical contestation far beyond the UN race-religion debates. In the context of the UN debates, however, Israel's support for an interlinked provision might have provoked concerns among other Middle East representatives that criticism of Israel would be conflated with the forms of race-religious othering that the proposed convention sought to address. In the midst of these tensions, non-Israeli Middle East backers of the race-religion provision abandoned their erstwhile favor for the Israel-supported proposal.
The proposal for an interlinked provision ultimately foundered. A December 1962 UNGA resolution formalized the demise and also sought to address the question of race and religion in separate international legal instruments.Footnote 134 By that resolution, the UNGA resolved to prepare a draft declaration and draft convention for the elimination of racial discrimination alongside separate drafts dealing with religious intolerance. The following year, the UNGA went even further, resolving “to give absolute priority to the preparation of a draft international convention on the elimination of all forms of racial discrimination.”Footnote 135 The reference to “all forms of racial discrimination” might appear to signal attention to all dimensions of racism; however, it in fact announced the UNGA's final retreat from a recognition of the interplay of racial and religious othering. Indeed, the UNGA would go ahead with the mandate on the race question, concluding the processes of negotiating the ICERD by the following year in 1963. Emerging from those processes, the ICERD became one of the earliest international human rights instruments. The ICERD made two references to religion: in its preambular reference to the UN mandate to ensure equality for all regardless of enumerated bases of difference (including religion), and in its Article 5 reference to the protection of individual rights in the enjoyment, inter alia, of the freedom of religion. Neither provision revived the interlinked race-religion protection initially proposed; rather, both provisions centered the neutered racial discrimination proposal that survived the debates. Even as the ICERD insisted that its mandate was to prohibit racial discrimination in all its “forms,” its excision of and religious discrimination provision denied the imperial history of race-religious othering, and ultimately meant that the convention's promise rang hollow.
III. Contemporary Struggles
A. The ICERD Debates
Never quite dead, the earlier struggles have made a comeback in ongoing UN debates over the formulation of a protocol to the 1963 ICERD. That debate among UN member states is unfolding before the Ad Hoc Committee on the Elaboration of Complementary Standards to the International Convention on the Elimination of All Forms of Racial Discrimination. At the urging of the UN General Assembly, the UN Human Rights Council established the Committee
to elaborate, as a matter of priority and necessity, complementary standards in the form of either a convention or additional protocol(s) to the International Convention on the Elimination of All Forms of Racial Discrimination, filling the existing gaps in the Convention and also providing new normative standards aimed at combating all forms of contemporary racism, including incitement to racial and religious hatred.Footnote 136
The work of the Committee touches on four thematic areas, namely: dissemination of hate speech; racial cybercrime (social media networks and companies); all contemporary forms of discrimination based on religion or belief; and preventive measures to combat racist and xenophobic discriminationFootnote 137 The relationship between racial and religious discrimination, which is integral to the Committee's consideration of the extension of ICERD protections to religion, has, however, been the most intractable issue—as it was during the original making of the ICERD in the earlier years of the UN's existence.Footnote 138
Some of the old UN alignments remain in the ongoing debate. The leading proponents of an interlinked proposal are still those states living with the memory of colonialism and the forms of differentiation through which the proposal legitimated itself.Footnote 139 In particular, the African Group continues to champion a proposal to extend ICERD protections to religion, thereby interlinking provisions for religious and racial equality in a way that recognizes the racial dimensions of religious othering. The African Group is strengthened by general support from the Global South, but it is now sharing the lead on the proposal with the Organization of Islamic Conference, which features predominantly Muslim states from the Middle East and from Africa and Asia.Footnote 140 For these proponents of an interlinked provision, the living memory of colonialism is integral to the demand for an international legal response to the interplay of racial and religious othering.Footnote 141 This group understands colonialism to be far from past and sees the colonial legacy living on in contemporary forms of racial and religious othering. Although anti-Semitic attacks had provided the immediate impetus for the mid-twentieth century race-religion UN debates, today, the question of Islamophobia has taken the center stage in the debates over an international legal response to what is understood as the racialization of religious minorities.Footnote 142
Advocates argue that anti-Muslim prejudice is simultaneously rooted in religious and racial discrimination.Footnote 143 They therefore seek to render specious the boundary between religious and racial discrimination by evoking the memory of the entanglement of racial and religious othering in the civilizational distinction justifying colonial and post-colonial (including post-9/11) forms of domination.
The discipline of the Muslim body in national and international legal security, and the law's regulation of the Muslim headscarf and veil are foremost illustrations of the imbrication of religious and racial discrimination in the construction of Islamophobia. I consider the example of the latter—the Muslim headscarf and veil—by looking to the jurisprudence of no less a Court than the ECtHR. This analysis of the Court's jurisprudence on the question of the Muslim headscarf reveals how the Christian European foundations of international law continue to give life to a jurisprudence that excludes Europe's religious others.Footnote 144 The ECtHR's reading of religious liberty creates a hierarchy of faiths that privileges European forms of Christianity, advances a majoritarian idea of religious liberty, and marginalizes minorities, most markedly the visibly Muslim woman. Beyond the ecumenical roots of the relevant European Convention's provision,Footnote 145 two legal devises have featured prominently in the ECtHR's exclusionary understanding of religious liberty. The first is the margin of appreciation (which defers to individual Christian European states’ inclinations of what is an acceptable construction of religious liberty). The second legal devise is the belief versus manifestation distinction that privileges European Christian notions of the superiority of conscience over faiths such as Islam in which the belief and practice are entangled rather than separate.Footnote 146 The outcome has been a body of jurisprudence that protects the expression of Christianity and Christian symbols as the preservation of European culture while restricting the Muslim veil/Muslim practice ostensibly because they fall within derogable manifestations of religion subject to majoritarian public order restrictions.
The belief/manifestation distinction analyzed to illuminate the interplay of race and religion in Islamophobia is also apparent in the jurisprudential treatment of aboriginal faiths in Canada where international law plays an important role in the construction of religious liberty.Footnote 147 In Ktunaxa Nation v. British Columbia, the Ktunaxa nation contended that a proposed government construction of a ski resort in Qat'muk, a sacred site to the Ktunaxa, would infringe its right to “freedom of conscience and religion” under Section 2(a) of the Canadian Charter. In support of its claim, the Ktunaxa argued that the permanent construction proposed in Qat'muk would drive out the Grizzly Bear spirit, a “principal spirit within Ktunaxa religious beliefs and cosmology,” with the consequence of “irrevocably impair[ing]” the Ktunaxa's “religious beliefs and practices.” The Supreme Court declined to uphold the Ktunaxa claim, holding that the Charter right to religious liberty did not entitle the “object of the belief” to protection. The Court extensively engaged with international law to reach its conclusion, highlighting in particular Article 18 of the Universal Declaration of Human Rights, and Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR). That “belief” versus “object of belief” distinction, however, failed to acknowledge that protections for the state's guarantee of the Ktunaxa right to belief were meaningless in the face of irrevocable harm to the object of the community's belief. At its heart, the Ktunaxa case centered on a claim of “equal religious citizenship” for Indigenous Canadians and sought to overcome the race-religion civilizational distinction that effectively frustrated Indigenous claims to religious protections.Footnote 148
To return to my analysis of the ECtHR jurisprudence, although the judicial decisions and the legal arguments before the ECtHR are conducted in the language of religion—and religious liberty—race and religion are indivisibly intertwined in that legal discourse. Indeed, one cannot recognize the Court's preferential treatment for the Christian faith and its subordination of “foreign” faiths such as Islam merely through the lens of religion.Footnote 149
A comparison of two decisions of the ECtHR is illustrative. In Dahlab v. Switzerland,Footnote 150 the Court upheld a restriction on a Muslim Swiss primary school teacher's wearing of the veil on the ground, inter alia, that it violated the state's commitment to denominational neutrality. The Court's rationale in Dahlab is, however, hard to square with its approach in Lautsi v. Italy in which it considered a challenge to the presence of a crucifix in an Italian classroom. Upholding the presence of the crucifix, the Court held that it was a symbol of European culture that was at once Christian as it was secular.Footnote 151 By doing so, the Court is, of course, exercising the sovereign power to define religion as a prelude to affixing a line that separates the religious—and, in particular, tolerable forms of religious manifestation—from a constructed secular whose specious content is itself determined by the state.
Leading critiques of secularism already draw attention to the politics of states’ exercise of this sovereign prerogative and the selective commitment to religious liberty that results therefrom.Footnote 152 I add here that an appreciation of the interplay between racial and religious othering illuminates what first appears to be an unprincipled construction of the sacred and the secular. The Court's conception of what religion is and is not, and what forms of religion are worthy of protection and what forms are not, is intimately linked with a process of racial construction integral to a civilizational distinction that is at the same time racial as it is religious and even cultural.
Bound in a civilizational distinction, the simultaneous racial and religious othering finds life in the gender discourse that the Court and proponents of restrictions deploy.Footnote 153 Consider, for instance, the Court's declaration in Dahlab that the headscarf “appears to be imposed on women by a precept which is laid down in the Koran and which . . . is hard to square with the principle of gender equality.”Footnote 154 Such rhetoric finds life far beyond the ECtHR and today's Europe, eliciting the colonial legacy in French Algeria.Footnote 155 As scholars such as Alia Saji argue, that discourse of gender equality functions as a way of racializing Muslims by projecting gender oppression to Islam and naturalizing that (gender oppression) to it. By doing so, the anti-veiling discourse defines Christian Europe as the opposite of the veil.Footnote 156 Just one example, Dahlab is part of a long line of decisions revealing the interplay of the processes of racialization and religious othering in the ECtHR treatment of a disfavored religious minority.Footnote 157 The racializing process of mirroring at play in the language of these decisions and in the body of jurisprudence that it produces is one that homogenizes Muslims in general, and Muslim women in particular, in spite of the somatic, cultural, and ethnic heterogeneity of members of that faith. In the end, therefore, it is not only the circumstances that bring Muslim claimants to court that racializes their religious identity. Even the Court's decision itself is suffused with language that perpetuates the racial cum religious othering of the Muslim woman.
Commenting on this phenomenon in the post-9/11 moment, scholars point out that Islam does not fully receive protections as a religion.Footnote 158 That analysis shows not only the bias of the international legal framework on religious liberty, it also reveals that the underlying legal, social, and political conditions that construct the Muslim “other” and the response of legal institutions (including the courts when called upon to adjudicate that othering) are embedded in a process of homogenizing Muslims and rendering them as an outsider to civilization, human rights, and progress. By marking the Muslim as essentially foreign and different, the homogenizing discourse renders Muslims as an internally undifferentiated category and consequently elides intragroup forms of discrimination and vulnerability among Muslims—even as it claims to be attentive to those experiences.Footnote 159 Such a discourse is overtly legitimated by projects such as gender equality (and national security); at its core, however, it is undoubtedly animated by a racializing discourse in which the Muslim is at the same time the racial and religious other.
B. An Ineffectual International Legal Framework
The current international legal framework continues to be unresponsive to the interplay of race-religion othering. To be sure, a tentative recognition of the interplay of religious and racial discrimination has begun to emerge in sections of the United Nations in recent years. The UN Office of the High Commissioner for Human Rights’ (OHCHR) report on Combating Intolerance, Negative Stereotyping, Stigmatizing, Discrimination, Incitement to Violence and Violence Against Persons, Based on Religion or BeliefFootnote 160 gestures toward a recognition of the racialization of religious minorities. The race-religion intersection is also now being interrogated in OHCHR expert reports, in particular with the work of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance entitled Freedom of Religion and Belief.Footnote 161 As a result of the sustained efforts of scholars and activists, the race-religion intersection is also now referenced by the widely endorsed United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).Footnote 162 By its preambular declaration that “all doctrines, policies, and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist . . .,”Footnote 163 UNDRIP demonstrates some awareness of the race-religion interplay in the othering of Indigenous persons. Yet, that consciousness is tamed by caution and has not yielded robust state action. Moreover, questions about the force and ultimate impact of UNDRIP remain given its status as a non-binding declaration and the lack of consensus over whether it has crystallized to the status of customary international law.Footnote 164 The jurisprudence of two key UN adjudicatory bodies, the UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination, further illuminate the failings of the current international regime.
1. The UN Human Rights Committee's Jurisprudence
The reticence to confront race-religion othering is noticeable in the UN Human Rights Committee's jurisprudence, despite the Committee's groundbreaking recognition of intersectionality in recent years. The Committee's 2016 decisions in Sonier Yaker v. France Footnote 165 and Hebbadj v. France Footnote 166 are particularly noteworthy. Both proceedings were initiated by two veiled Muslim women to challenge their conviction under a French law, “Act No. 2010-1192,” banning the wearing of face-covering apparel.Footnote 167 Both Yaker and Hebbadj argued before the UN Human Rights Committee that the French decisions convicting them for wearing the veil violated their rights to freedom of religion, and non-discrimination as contained in ICCPR Articles 18 and 26, respectively. The Human Rights Committee found that the ban on the niqab violated their rights to overtly manifest their religious beliefs. The question of intersectionality had an important place in the Committee's decision, with the Committee holding that the French “provision and its application to the author constitutes a form of intersectional discrimination based on gender and religion.”Footnote 168 The Committee was, however, muted on the question of race, even as the legal restrictions in question cannot be properly understood without an appreciation of the broader discursive context in which the racial and religious othering of the Muslim is mutually co-constitutive.Footnote 169
An acknowledgement of the race-religion interplay, however, figured prominently in the Committee's decision to entertain the communication in Mohamed Rabbae et al. v. Netherlands.Footnote 170 The authors, Muslim immigrants from Morocco, challenged a Dutch court's decision to acquit Geert Wilders, a member of the Dutch parliament and founder of the Party for Freedom who had uttered derogatory statements against Muslims and immigrants. Netherlands had charged Wilders with “insulting a group for reasons of race or religion” and “incitement to hatred and discrimination on grounds of race or religion.” The authors who had joined proceedings initiated by the public prosecutorFootnote 171 argued that Wilders's statements “[were] not directed against Islam as a religion but against Muslims as human beings or against non-Western migrants,” and amounted to “incitement to hatred, discrimination, and violence.”Footnote 172 Among other statements, Wilders had declared:
The demographic composition of the population is the biggest problem in the Netherlands. I am talking about what comes to the Netherlands and what multiplies here. If you look at the figures and its development. Muslims will move from the big cities to the countryside. We have to stop the tsunami of Islamization. That stabs us in the heart, in our identity, in our culture. If we do not defend ourselves, then all other items from my programme will prove to be worthless.Footnote 173
The authors argued that they had been personally affected by Wilders's hate speech and adduced evidence to show how that speech had to led them to “suffer . . . in their daily lives.”Footnote 174 Testifying before the Court, Mohamed Rabbae extensively invoked research data on “racism and the position of Moroccans in Dutch society.”Footnote 175 Departing from its previous approach in petitions concerning hate speech filed by European Muslims, the Committee found the petition admissible. Although the Committee's determination on the merits ultimately found no breach of the ICCPR, the decision to admit the petition is significant because it hinged on the Committee's acknowledgement of the intersection of racial and religious discrimination. The Court's construction of the group was informed by its recognition of the intersection of race and religion both in Wilder's hate speech and in the experience of the claimants. As the Committee noted:
The authors are Muslims and Moroccan nationals, and allege that Mr. Wilders’ statements specifically target Muslims, Moroccans, non-Western immigrants and Islam. The authors are therefore members of the category of persons who were the specific focus of Mr. Wilders’ statements . . . . Mr. Wilders’ statements had specific consequences for them, including in creating discriminatory social attitudes against the group and against them as members of the group.Footnote 176
Although the Rabbae decision indicates the Committee's attunement to the interplay of racial and religious discrimination, it suffers from an important limitation. Notably, the Committee's understanding of race-religion appears to utilize a double discrimination lens that understands the race-religion interplay merely as dual and fails to acknowledge their mutual co-constitution. While such an approach benefits claimants in cases in which somatic racialization features is at issue, the approach is blind to race-religion othering where somatic racialization is not explicitly at play.
In fact, a double-discrimination interpretation of the Rabbae decision might explain the different outcome in the earlier cases of A.W.P. v. Denmark Footnote 177 and Andersen v. Denmark Footnote 178 in which the Committee found the separate petitions brought by two Dutch-born Muslims as members of the group targeted by hate speech to be inadmissible.Footnote 179 In Andersen v. Denmark, a head-scarved Danish-born Muslim woman sought to challenge Denmark's decision to not prosecute certain members of the Danish People's Party (DPP) for remarks that she argued “form[ed] part of [an] overall ongoing campaign stirring up hatred against Danish Muslims.”Footnote 180 Andersen had sought the prosecution of the relevant DPP members under a provision of Denmark's Criminal Code penalizing “racially discriminating statements.”Footnote 181 The author pointed to one statement among others by a leading member of the Danish People's Party on national television likening the hijab to a Nazi swastika.Footnote 182 Similarly, in A.W.P. v. Denmark, the author, a Danish-born Muslim man, alleged that Denmark's failure to prosecute anti-Muslim hate speech amounted to a violation of his rights under ICCPR Articles 2 (non-discrimination), 20 (prohibition of incitement to hatred), and 27 (right of minorities to practice their religion). Beyond the Nazi analogies alleged in Andersen, such statements included those by a DPP member and Parliamentarian that “Muslim societies are per definition losers. Muslims cannot think critically . . . and this produces losers . . .”Footnote 183 and another by a DPP member that “the idea that a fundamentalist with headscarf should become [a] member of the Danish Parliament is sick. She (the [Muslim] candidate for parliament) needs mental treatment. . . .”Footnote 184 A.W.P. argued that the comments were a few examples of broader attempts by the DPP to stir up violent hatred against Muslims in Denmark, alleging that those statements “create[d] a hostile environment” and amounted to “concrete discrimination against him.”Footnote 185 Similarly, Andersen argued that those statements “not only hurt her but put her at risk of attacks by some Danes who believe that Muslims are responsible for crimes they have in fact not committed” while also adversely impacting her employment opportunities.Footnote 186 In spite of the similarities between these allegations and those at issue in Rabbae, the Committee found the allegations insufficient to establish that the statements in question had “specific consequence” or that “the specific consequences of the statement were imminent and would personally affect the author.”Footnote 187 Accordingly, the Committee held that the communications in AWP and Andersen amounted to actio popularis and were inadmissible.Footnote 188
An exposition of the Committee's jurisprudence on locus standi and freedom of expression is beyond the scope of this Article. I cite these cases to illustrate the limitations of a double-discrimination paradigm in addressing the experiences of racialized religious minorities. One important way to understand the difference between the Committee's approach in A.W.P. and Andersen and the one it took in Rabbae lies in the explicit invocation of race and religious identities in the latter case.Footnote 189 In Rabbae, the Committee's construction of the speech as directed against Muslims and Moroccans enabled the Court to understand the othering in that case as arising from double discrimination: one based on religion, and the other based on a somatic/ethnic/national origin distinction. That intersectionality-as-double-discrimination lens proves helpful in admitting authors such as Rabbae; however, such a lens will continue to exclude those like A.W.P. and Andersen even as the discursive portrayal of the Muslims in the speech at issue in those cases was undoubtedly racialized in the ways historicized by this Article.
2. The Committee on the Elimination of Racial Discrimination
The ineffectual double discrimination understanding of racialized religions is also apparent in the jurisprudence of CERD, which is charged with implementing ICERD.Footnote 190 In general, CERD has recognized the interplay of racial and religious discrimination. In its General Recommendation 32, for instance, CERD declared that ICERD protections extend to persons belonging to racialized religious communities such as Muslims subjected to Islamophobia.Footnote 191 This acknowledgement has, however, not translated in an attunement to the mutual co-constitution of racial and religious othering.
Particularly noteworthy is CERD's response to Communication 36 of 2006 in which the petitioner argued that Islamophobia had been expressed as a form of racism post-9/11 in the West. In support of the claim, the petitioner cited the CERD's Concluding Observation of 2002 on Denmark where the Committee noted the “increase in reported cases of widespread harassment of people of Arab and Muslim backgrounds since 11 September 2001.”Footnote 192 In that Communication, the CERD had recommended that “the State party monitor this situation carefully, take decisive action to protect the rights of victims and deal with perpetrators, and report on this matter in its next periodic report.”Footnote 193 Despite this earlier CERD declaration that appears to support Communication 36, the CERD found the Communication inadmissible.
In its decision, the CERD acknowledged its recognition of “the importance of the interface between race and religion and considers that it would be competent to consider a claim of ‘double’ discrimination based on religion and another ground specifically provided for in article 1 of the Convention, including national or ethnic origin.”Footnote 194 However, the CERD rationalized its dismissal of the application on the ground that “the current petition . . . exclusively relates to discrimination on religious grounds.”Footnote 195 The Committee further pointed out that “the Convention does not cover discrimination based on religion alone and that Islam is not a religion practised solely by a particular group, which could otherwise be identified by its ‘race, colour, descent, or national or ethnic origin.’”Footnote 196 By utilizing the lens of double discrimination, however, the CERD adopted an approach that locates the racialization of religious minorities solely in the intersecting axis of a racial and religious discrimination that are presumed to be separate forms of othering. That outlook holds on to an ineffectual somatic understanding of racial discrimination and obscures the mutual constitution of racial and religious othering as it pertains to disfavored minorities. In spite of its preliminary acknowledgment of the interplay of religious and racial discrimination, the CERD's jurisprudence therefore reveals a skepticism of interlinking international legal protections for racial and religious discrimination in a way that recognizes the mutual co-constitution of race and religion.Footnote 197 That understanding of the race-religion interplay as double discrimination along the axis of disparate (although intersectional) sets of identities is limited in its diagnosis of race-religion discrimination.
The double discrimination lens has found its way into the ICERD debates. Certain opponents of the ICERD proposal contend that to recognize discrimination against religious minorities as a form of racism would be to conflate two distinct forms of identity, one of which is immutable (race), and the other mutable and changeable (religion).Footnote 198 Even some who sympathize with and champion the extension of ICERD protections for racial discrimination to certain forms religious discrimination speak of that relationship in narrow intersectional terms, one in which the axis of religious discrimination encounters that of (somatic) racial discrimination.Footnote 199 Yet, such a minimalist understanding of the interplay of identities undermines advances in critical race theory. That body of literature has since revealed the ways in which seemingly disparate identities such as “race” and “class” might in fact be mutually co-constitutive in their interaction in a given range of power relations.Footnote 200 The history narrated by this Article illuminates that mutual co-constitution of racial and religious othering in the experience of the non-Euro-Christian other.
Another concern that has surfaced in the ongoing proceedings is that linking protections for race and religion would undeservingly privilege religion.Footnote 201 A related concern arises about intragroup vulnerability—that linking protections for race and religion would shield religion from critique and could mask the marginalization of persons inhabiting precarious intersections within religious groups.Footnote 202 The concern with intragroup minorities is important; after all, religion, like all ideologies, has historically been and continues to be susceptible to being deployed as a tool of oppression. Patriarchy and anti-Blackness, among other forms of oppression, are not alien to those inhabiting marginalized intersections, even within the ranks of racialized religious minorities.Footnote 203 Yet, this concern does not defeat the race-religion narrative. Indeed, an acknowledgement of the mutual imbrication of racial and religious othering underscores rather than elides intragroup vulnerability within the racial cum religious other.
The lessons of critical race theory, in its unmasking the unique vulnerability of internal minorities within subjugated racialized groups, is apposite.Footnote 204 Indeed, the experience of race-religion “othering” is heightened in the experience of persons rendered especially vulnerable by gender, Blackness, or class, among other identities.Footnote 205 It is not an accident that much about the racialization of Muslims has been illuminated in this Article through examining the case of a minority within a minority— the veiled Muslim woman. The uneven distribution of oppression within the ranks of groups targeted by racial cum religious othering does not undo the enduring historical structuration of the race-religion distinction. Instead, since the race-religion subordination of the non-Euro-Christian other is rendered acutely legible in the experiences of intragroup minorities, the analytical lens of race-religion is sharpened by an attunement to intragroup vulnerability. In the same vein, efforts to interrogate intragroup forms of vulnerability within the race-religious other, can be advanced by the race-religion-construct, rather than impeded by it.
The intra-group vulnerability-based opposition to the international legal recognition of race-religion discrimination accentuates a tension between two commitments—the first, to interrogating the structural hierarchies that condition Europe's racial-religious other to a subordinate position, and the second, to unmasking internal forms of vulnerability within the race religious other. This framing creates a false choice. In fact, both projects need not be at odds. The structural hierarchies that construct the race-religious other are implicated in (though not solely responsible for) internal modes of marginalization. At the same time, the experience of internal minorities within the race-religious other acutely illuminates race-religion othering. In sum, therefore, confronting race-religion othering need not undermine unmasking—and remedying—intragroup vulnerability.
Conclusion
This Article historicizes the current bid to link international legal protections for racial and religious discrimination. I situate that proposal in the longer history of the colonial origins of international law and argue that the European imperial expansionist project that formed the basis of the current international legal order was based on a race-religion demarcation. Far from separate, racial and religious othering were intimately bound and mutually co-constitutive. Moreover, that othering functioned to separate Christian Euro-America from its “others.” That racial-religious hierarchy and subordination inspired two significant historical efforts to secure international legal protection for the unique form of marginalization that emerged from the mutual imbrication of racial and religious othering. Tabled at epochal moments in the making of the international legal order—the foundational moments of negotiating the League Covenant, and the years following World War II—those efforts are meaningful even if they foundered. The neutralization of those earlier efforts by imperial powers reveals that the much-criticized protection gap that leaves racialized religious groups without legal recourse (and that in significant ways compounds the marginalization of those groups) is a product of the same hierarchies that subordinate the racial-religious other. The current ICERD debates provide a unique opportunity to confront the continuing afterlife of the imperial history of race-religion othering, and to creatively imagine an emancipatory international legal response.
This Article offers an approach to understanding the international legal problem of race-religion discrimination, the ineffectual international framework that problem inhabits, and the enduring struggle against race-religion othering by centering the history of Europe's colonial encounter with its “others.” The centering of Europe's nineteenth- and twentieth-century colonial encounter with the world—and the unmasking of its lasting legacy—is not intended to elide earlier modes of imperial hierarchies and subordination. Neither does this account occlude contemporary manifestations of religious or ethno-racial discrimination in the global south, including within the formerly colonized states spearheading the ICERD reform. By affixing its gaze on Europe, this Article unveils the colonial foundations of the co-constitution of religious and racial othering in modern international law. The emerging chronicle elucidates what is otherwise confounding about the inequities of the contemporary international legal regime and offers intellectual aid to contemporary efforts to transcend the imperial past through bold reform.
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