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RACIAL DISCRIMINATION IN US VIS-À-VIS TO ITS INTERNATIONAL COMMITMENTS
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RACIAL DISCRIMINATION IN US VIS-À-VIS
TO ITS INTERNATIONAL COMMITMENTS
SUBMITTED BY- ANSHUMAN BISARYA
Narsee Monjee Institute Of Management
Studies, School Of Law, Indore
CHAPTER- I-INTRODUCTION
Human
beings by virtue of being human beings, being born as human right have some
rights bestowed upon them, rights so connected deeply with them to the extent
these rights can be deemed as “inseparable” and “inalienable” rights. Post WW2,
Human Rights were given
their due recognition which resulted into Universal Declaration Human Rights
(1948). At present, there is worldwide acceptance that every human being should
have some basic rights. Racial discrimination is an obstacle to realising the
full extent of Human Rights. The Blacks particularly in US have been
discriminated on the basis of their colour which has found in recent times
quite ugly outlets that have transcended beyond the realm of humanity which
exposes the ugly side of deep-rooted bias and the limits that can be crossed
because of it.
Research Questions
i.
What
is meant by racial discrimination?
ii.
Has
US despite ratifying to ICERD fulfill its obligations?
1.1 Hypothesis
Racial discrimination often is
misunderstood as just differentiating and discriminating on basis of skin
color. But racial discrimination is not just restricted to skin color. It is
much more than that with far more implications and outlets. United States which
often proclaims itself as World Leader has often found itself grappling with
the problem of racial discrimination and despite making grand dreamy speeches
and tall claims, ground reality has not shown much change despite being in
rights conscious and equality seeking 21st century.
1.2 The Scope of the study
Racial discrimination against blacks
by Law enforcement agencies in the US.
1.3 Methodology
The present research is mainly a
doctrinal research and analytical study. The relevant material is collected
from the secondary sources. Materials and information are collected from
journals, print and electronic media.
CHAPTER-II
WHAT ARE HUMAN RIGHTS?
All
individuals being humans are entitled to these rights irrespective of their
caste, creed, religion, sex, and nationality. Because these rights are
“inseparable” and “inalienable,” no human being can live without these rights. Such is the
deep interconnection between these rights and the element of being human. These
rights are quintessential for every human being and is important for physical,
moral, social, and spiritual welfare.[1]
These rights act as an important catalyst for creating a conducive atmosphere
where individuals can work, act, and think so as for them to lead a life by
their liking, needs, wants and of some suitable conditions for themselves and their
families.[2]
Some features of the Human Rights are
Universality and inalienability, Indivisibility, Inter-dependence and
inter-relatedness, equality and non-discrimination and participation and
inclusion, accountability, and rule of law.[3]
Human Rights are also classified into
further First-Generation Rights Civil and Political Rights- people have right
to participate in the formation of their respective governments.
Second Generation Rights are
economic, social, and cultural rights- right to adequate food, clothing, to
work, to social security, to education to name a few.
A new set of understanding of rights
has also emanated in which society as a whole collective enjoy those rights
such as right to economic and social development, to a healthy environment to
name a few.[4]
Human Rights, earlier were not given
much recognition nor were they understood as something important for a society
but after witnessing the horrors, the brutality and inhumanity of the Nazis
post World War II, human rights was given its due (long overdue) recognition
and acknowledgment which later gave us Declaration of Rights (1948) and nations
across the World ratifying it albeit that meeting its own fair share of
criticism from the East, it was a positive step nonetheless towards
acknowledging and understanding the importance of human rights in a society. At
present, there is world wide acceptance that every human being should have some
basic rights and that has reflected both at domestic and global level. Such is
the level of recognition of importance of human rights that they are seen as
“rights which no can be deprived of without a grave affront to justice”[5]
WHAT IS RACIAL DISCRIMINATION?
The origins of the word racism not
having a single interpretation owes its origins to back in 1902 and in 1950, it
was first found and given meaning in a UNESCO publication titled the Race
Question.[6] It
defined racism as “a particularly vicious and mean expression of the caste
spirit. It involves belief in the innate and absolute superiority of an
arbitrarily defined human group over other equally arbitrarily defined groups
and [a]s an ideology and feeling, racism is by its nature aggressive.”[7]
The International Convention on
Elimination of Racial Discrimination defines racial discrimination as
“[d]iscrimination between human beings on the ground of race, colour or ethnic
origin is an offence to human dignity and shall be condemned as a denial of the
principles of the Charter of the United Nations, as a violation of the human
rights and fundamental freedoms proclaimed in the Universal Declaration of
Human Rights, as an obstacle to friendly and peaceful relations among nations
and as a fact capable of disturbing peace and security among peoples.”[8]
Racial discrimination can be
understood as when an individual is treated on another footing or
disadvantageously than other person for/in a similar situation owing to the
former’s race, skin colour, descent, national, ethnic origin, or immigration
status.[9]
Forms in which racial discrimination
can be witnessed is overt bias and prejudice. Stereotyping is another form of
racial discrimination which characterise and attach same attributes to all
members of a group or community completely side-lining the individuality aspect
of persons and treating every member from that group and mitigating same
behaviour to all of them alike. Racial profiling is another form that involves
stereotypes against particular people from a particular community, group. Divided opinions on racial profiling are
that it is a great tool to weed out the criminals from the society and some
argue against it as giving an open hand to the bias and prejudice and sometimes
even vendettas that exist in minds that find an ugly outlet.
The
outlets of racially discriminatory behaviour call for racial discrimination as
a violation of human rights as it foremost affects affected people’s right to
live a dignified life.
CONVENTION
AND COMMITTEES ON RACIAL DISCRIMINATION
To combat the ailment of racial
discrimination, conventions have been adopted chiefly the International
Convention on Elimination of All Forms of Racial Discrimination (ICERD). It has
3 Parts and 25 Articles.[10]
Article 4 states “States Parties condemn all propaganda and all
organizations which are based on ideas or theories of superiority of one race
or group of persons of one colour or ethnic origin, or which attempt to justify
or promote racial hatred and discrimination in any form”[11]
Article 5 clause (b) states “the right to security of person and protection by
the State against violence or bodily harm, whether inflicted by government
officials or by any individual group or institution”[12]
clause (i) states “the right to freedom of movement and residence within the
border of the State”[13]
ICERD States have to submit
comprehensive reports to the Committee on Elimination of Racial Discrimination
(CERD) every 4 years with 2-year brief reports containing updates. A
representative from the State may introduce the report when it comes for
examination before the Committee. Committee makes a report which is sent to
General Assembly which has summary of the proceedings, suggestions, and
recommendations. CERD has categorically referred that the Convention can
address both present problems and future problems as well and by ratifying, all
State parties must incorporate/introduce the provisions into their respective
domestic laws. Further, procedure for addressing and taking in complaints from
individuals or groups complaining of violation came into place in 1982.[14]
The ICERD has 3 procedures which
allow Committee on Elimination of Racial Discrimination (CERD) to review the
judicial, administrative, and legal measures taken by State parties with
objective to fulfil their obligations to fight against racial discrimination.
Additionally, CERD provides guidelines to the State parties w.r.t preparation
of reports and can ask them for additional information, if required. CERD as laid out by Convention is made of 18
experts who serve in their personal capacity are of “high moral standing and
acknowledged impartiality”. Members are elected for a 4-year term by the State
parties. Elections for half membership is done at 2-year interval. CERD is an
“autonomous” body. Members cannot be
dismissed nor without their consent replaced. As per the Convention, CERD
reserves the right to formulate their own rules of procedure and receive no
external inputs. CERD gives its reports to UNGA through the Secretary General.[15]
RACIAL DISCRIMIANTION AGAINST BLACKS
IN US BY LAW ENFORCEMENT AGENCY
Post-WW II, in US, Afro-American
soldiers back from the war were subjected to “renewed” racism. Along with this,
ongoing inequal status quo of society led to a spark of political, economic,
and cultural protests that would later culminate in the Civil Rights Movement.[16]
One of the most prolific Black
rights’ activists Dr. Martin Luther King Jr.’s non-violent movement captured
the imagination and hopes of millions of black people in the US thrusting
forward for better civil rights and status in the American society. His famed
speech “I Have a Dream” is understood as the height of the Civil Rights
Movement in the US which thrusted forward the anti-racial discrimination
movement not only in US but in the World.[17]
United States signed ICERD in 1966
and ratified in 1994[18]
but despite widespread calls for end to racial discrimination in US and a
particularly stained history of discord, divide and discriminatory behaviour
towards the blacks in US, the American society, at large, is still plagued by
racial divide and discriminatory behaviour. Racial discrimination against the Blacks has been often
exhibited not only by citizens but also by the police departments across US.
The height and spread of it is such that stemming out of racial profiling, in
America, “shooter bias” has come where ordinary people link criminal acts
(robbery, car-jacking etc) being committed by black men[19]
Racial profiling by law enforcement agencies
has led to sharp rise in lawsuits since the 1990s. Black drivers on an average
were likely to be stopped 2-3x on highways and stopped by police on roads.
Black people were over 9x times more stopped than white drivers.[20]
As per Statista Research Department,[21]
Black Americans face more police shootings than any other ethnicity in US, 40
shootings per million of black population as of August’22. The rate at which black
Americans are killed by police is more than twice as high as the rate for white Americans.[22]
Geroge Floyd’s death which was a
major highlight of “Black Lives Matter” movement was a result of ugly
discriminatory conduct on part of Minneapolis Police officer Derek Chauvin who
put his knee on Floyd’s neck for 9+ minutes which was one of the factors which
led to his death. Derek Chauvin was convicted of murder and sentenced to 22.5
years.[23]
Despite ratifying to
ICERD in 1994, The United States has failed “to materially adhere” to
obligations laid down by ICERD by way of submitting reservations that effectively
cull the treaty’s effect, failure to enact domestic legislation and critically,
its citizens cannot present their case/complaint to ICERD and not submitting in
timely reports of the measures undertaken to combat racial discrimination.[24]
Key reason US puts forth
is that it has “sufficient” domestic laws to address the problems. Reason
behind Committee’s insistence for enactment of domestic legislation by US is
based on the difference of interpretation between US’s laws and ICERD’s take on
racial discrimination. ICERD’s take does not require the element of
discriminatory intent and if a policy is “disparate” it is construed as
discriminatory however US’s laws require that discriminatory intent be proved
which translates into a burden of proof difficult to discharge thus making the
remedy difficult to get. This gives leeway to hate speech being masked under
the garb of free speech and often disseminated in the American society.[25]
CONCLUSION
Racial discrimination is not just
limited to contours of colour of skin, it is much beyond that. Racial
discrimination is a by-product of deep-rooted bias, ignorance, and an
artificial sense of superiority. It is sad that the world as a collective
society engage in so many debates and does so much to facilitate a greater exercise
of rights and a push towards a better society only to be deterred and suffer
setbacks. Racial discriminatory behaviour is one such setback. It is ironical
that United States of America, the self-proclaimed leader of the “Free World”
can be understood as a breeding pit for racial discrimination, , the US while
flashing its First World country status fails miserably when it comes to
actually translating its cherished status into reality. Additionally, United
States has a pattern of disregarding International Organizations efforts and
thinking, it has not ratified to ICERD (and CEDAW) both on the grounds that its
domestic laws are sufficient enough to address the issues while there is ample
evidence on an almost daily basis that the domestic laws and the subsequent law
and administrative arms are clearly failing to protect and come to aid of its
citizens, sometimes they themselves engaging in racially discriminatory
behaviour and no check or corrective action is taken against them has led to
violation of rights as mentioned in Art. 5 cl. (b) and (i) of ICERD. US remains
adamant that no ratification or full commitment is necessary despite CERD
giving strong credible reasons to do so while on other hand, it often preaches
to the world about the necessity and benefits of being a part of global
community (propelled by prosperity, equality and peace) with shared goals and
vision which begs the question, Is the US really committed to the vision of
equal, peaceful and prosperous society that it paints to the world and its
citizens or does it think of these international organisations as an instrument
of its soft power. US despite having an already long-strained and coloured by
blood history makes no strong efforts to combat racial discrimination and
achieve unity. Police brutality and shooting, discriminatory behaviour
resulting in stereotypes, racial profiling arbitrary unjustified checks on
black citizens thus violating those people’s right to live a dignified life,
equality and movement within their country as enshrined in ICERD and their own
laws are violated at the most basic yet deepest levels. Even higher status
black people are still looked down upon by their equivalent white counter
parts. The problem of racial discrimination in US is incessant with no real
solutions geared to bring an ever divided and racially charged society to come
together and co-exist harmoniously peacefully and equally.
[1] Dr.
H.O Agarwal, Human Rights, pg. 2 (Central Law Publications 17th
edn., 2020.)
[2] ibid
[3] United Nations, what are human
rights? UN https://www.unicef.org/child-rights-convention/what-are-human-rights
(last accessed on 5/09/22)
[4] Ibid
[6] Anna Spain Bradley, Human
Rights Racism, 32, Harvard Human
Rights Journal pg. 2, (2019)
[7] Supra Note 6 at pg.26
[8] G.A. Res. 1904 (XVIII), art. I, UN
Declaration on the Elimination of All Forms of Racial Discrimination (Nov. 20,
1963)
[9] United Nations, Fight Racism, UN
https://www.un.org/en/fight-racism (last accessed on 6/09/22)
[10]International Convention on the
Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, 660
U.N.T.S. 195 {entered into force 4 Jan, 1969)
[11] ICERD, Art. 4
[12] ICERD, Art. 5 cl.(b)
[13] ICERD, Art.5 cl.(i)
[14] OHCR, The Committee on the
Elimination of Racial Discrimination, OHCR,
https://www.ohchr.org/sites/default/files/Documents/Publications/FactSheet12en.pdf
(last accessed on 7/09/22)
[15] Ibid
[16] CNN Library, 1965 Selma to
Montgomery March Fast Facts, CNN https://www.cnn.com/201 3/09/15/us/1965
-selma-to-montgomery-march-fast-facts/index.html [https://perma.cc/ 42VP-3NUR]
(last accessed on 7/09/22)
[17] Keynote speech at the "March
on Washington" (Aug. 28, 1963), reprinted in Martin Luther King, Jr.,
"I Have a Dream," in TESTAMENT OF Hope: THE ESSENTIAL WRITINGS OF
MARTIN LUTHER KING, JR., 218-19 (James M. Washington ed., 1986)
[18] Maya K. Watson, The United
States’ Hollow Commitment to Eradicating Global Racial Discrimination,
American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/black-to-the-future-part-ii/the-united-states--hollow-commitment-to-eradicating-global-racia/#:~:text=The%20United%20States%20and%20ICERD,-The%20goal%20of&text=The%20United%20States%20signed%20ICERD,an%20end%20to%20racial%20discrimination.
(last accessed on 7/09/22)
[19] Jennifer L. Eberhardt et al., Seeing Black: Race,
Crime, and Visual Processing, 87 J. PERS. & Soc. PSYCHOL. 876 (2004)
[20]Brendan O’Flaherty
& Rajiv Sethi, Handbook of Regional and Urban
Economics, 2015, Science Direct
https://www.sciencedirect.com/topics/social-sciences/racial-profiling (last
accessed on 7/09/22)
[21] Statista Research Department, People shot to death by U.S. police 2017-2022, by race,
Statista, https://www.statista.com/statistics/585152/people-shot-to-death-by-us-police-by-race/
(last accessed on 7/09/22)
[22]The Washington Post, correspondent,
1,044 people have been shot and killed by police in the past year, Washington
Post, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/
(last accessed on 7/09/22)
[23] New York Times correspondent, How
George Floyd died, and what Happened Next, New York Times,
https://www.nytimes.com/article/george-floyd.html (last accessed on 7/09/22)
[24] Supra Note 18
[25] Ibid
Article Information
RACIAL DISCRIMINATION IN US VIS-À-VIS TO ITS INTERNATIONAL COMMITMENTS
Authors: ANSHUMAN BISARYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/14
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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