Introduction
Racism remains one of the most pervasive and enduring challenges to human dignity and equality across the globe. Despite significant strides in civil rights and international cooperation, systemic discrimination based on race, color, descent, or national or ethnic origin continues to undermine social cohesion and human rights. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted by the United Nations General Assembly on December 21, 1965, and entering into force on January 4, 1969, stands as a cornerstone of international efforts to combat racial discrimination. With 182 states parties as of recent data, ICERD represents a near-universal commitment to eradicating racism through legal, policy, and societal reforms (United Nations, 2020). This article examines the impact of ICERD on global efforts to combat racism, analyzes the legal mechanisms through which countries enter into and implement the treaty, explores the monist and dualist approaches to treaty incorporation in national law, and discusses the relationship between ICERD and the Vienna Convention on the Law of Treaties (VCLT) of 1969.
Historical Context and Objectives of ICERD
The adoption of ICERD in 1965 came at a time of significant global upheaval, marked by struggles against colonialism, apartheid in South Africa, and racial segregation in various forms across the world. Building on the principles of the Universal Declaration of Human Rights (1948), ICERD was designed as a specific instrument to address racial discrimination as a distinct and pressing human rights issue. The Convention defines racial discrimination in Article 1 as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” (ICERD, 1965). This broad definition encompasses both intentional and structural forms of discrimination, making ICERD a powerful tool for addressing systemic inequalities.
The primary objectives of ICERD include the elimination of racial discrimination in all its forms, the promotion of understanding among races, and the establishment of mechanisms for accountability. Under Article 2, states parties are obligated to “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms” (ICERD, 1965). This includes enacting legislation, adopting policies to reverse discriminatory practices, and ensuring equality in the enjoyment of rights. Furthermore, Article 4 mandates states to criminalize hate speech and participation in organizations that promote racial hatred, a provision that has sparked significant debate regarding the balance between freedom of expression and the need to combat racism.
Legal Mechanisms for Entering into Treaties under ICERD
The process through which countries legally enter into treaties such as ICERD is grounded in international law, specifically the principles laid out in the Vienna Convention on the Law of Treaties (VCLT) of 1969, as well as the specific provisions within ICERD itself. ICERD, under Article 17, stipulates that the Convention is “open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention” (ICERD, 1965). This provision establishes the eligibility criteria for states to become signatories and subsequently parties to the Convention.
Once a state signs ICERD, the next step is ratification, as outlined in Article 18, which requires states to deposit an instrument of ratification or accession with the Secretary-General of the United Nations (ICERD, 1965). Ratification signifies a state’s consent to be legally bound by the treaty’s provisions. Under Article 19, the Convention enters into force for each state 30 days after the deposit of its instrument of ratification or accession (ICERD, 1965). These articles collectively provide the legal framework for a country to enter into ICERD, ensuring that the process adheres to international norms of treaty-making and state consent.
For states, the ability to enter into treaties like ICERD is also influenced by their domestic constitutional frameworks. While ICERD provides the international legal basis for accession, national laws often dictate the internal processes for treaty ratification, including the role of executive and legislative bodies. This interplay between international and national law raises the question of how treaties are incorporated into domestic legal systems, a topic often framed by the distinction between monist and dualist approaches.
Monist vs. Dualist Approaches to Treaty Incorporation
The incorporation of international treaties such as ICERD into national law depends on whether a state follows a monist or dualist approach to international law. In a monist system, international law is automatically part of domestic law upon ratification of a treaty, often taking precedence over conflicting national legislation. Countries like the Netherlands and France operate under a monist framework, where treaties such as ICERD can be directly invoked in national courts without the need for additional domestic legislation (Cassese, 2005). This approach facilitates the immediate application of international human rights norms within the domestic sphere, ensuring that commitments made under ICERD are enforceable at the national level.
In contrast, a dualist system requires international treaties to be transformed into domestic law through legislative action before they can have legal effect. The United Kingdom and many Commonwealth countries adhere to this approach, meaning that ICERD’s provisions are not directly applicable in national courts unless Parliament enacts specific legislation to incorporate them (Dixon, 2013). For instance, while the UK ratified ICERD in 1969, its principles were implemented through domestic laws such as the Race Relations Act 1976 and, more recently, the Equality Act 2010. This dualist approach can create delays in the enforcement of international obligations, as legislative processes may be subject to political and bureaucratic challenges.
The distinction between monist and dualist systems has significant implications for the implementation of ICERD. In monist states, the direct applicability of the Convention can lead to more rapid changes in legal and policy frameworks to combat racial discrimination. However, in dualist states, the need for legislative action can result in inconsistencies or gaps in the application of ICERD’s provisions. Regardless of the approach, Article 2 of ICERD imposes a clear obligation on states to “take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination” (ICERD, 1965). This provision underscores the necessity of aligning national laws with international commitments, irrespective of the method of incorporation.
ICERD and the Vienna Convention on the Law of Treaties (VCLT) 1969
The relationship between ICERD and the Vienna Convention on the Law of Treaties (VCLT) of 1969 is an important consideration in understanding how states enter into and interpret their obligations under the Convention. The VCLT, often described as the “treaty on treaties,” codifies customary international law regarding the formation, interpretation, and termination of treaties (Villiger, 2009). While ICERD was adopted in 1965 and entered into force in 1969, the same year as the adoption of the VCLT, ICERD itself is not a “party” to the VCLT because treaties are agreements between states, and conventions like ICERD do not have legal personality to be parties to other treaties. Instead, the states that are parties to ICERD are bound by the principles of the VCLT with respect to how they enter into, interpret, and implement ICERD.
The VCLT applies to ICERD in the sense that its provisions govern the behavior of states parties to both instruments. For example, Article 26 of the VCLT establishes the principle of “pacta sunt servanda,” meaning that treaties must be performed in good faith (VCLT, 1969). This principle reinforces the obligations of states under ICERD to implement measures against racial discrimination sincerely and effectively. Additionally, Articles 31 and 32 of the VCLT provide rules for treaty interpretation, emphasizing the importance of the ordinary meaning of terms in their context and the object and purpose of the treaty (VCLT, 1969). These provisions guide states in understanding and applying ICERD’s broad definitions and obligations, such as those in Articles 1 and 2.
The relevance of the VCLT to ICERD also informs other countries on how to properly enter into treaties with similar objectives. States that are parties to the VCLT are expected to follow its procedural and substantive rules when ratifying or acceding to ICERD. For instance, under Article 11 of the VCLT, states can express their consent to be bound by a treaty through signature, ratification, acceptance, approval, or accession (VCLT, 1969). This mirrors the process outlined in Articles 17 and 18 of ICERD, providing a consistent legal framework for treaty-making. Furthermore, the VCLT’s provisions on reservations (Articles 19-23) are particularly relevant, as many states have entered reservations to ICERD, especially regarding provisions like Article 4 on hate speech, which some argue conflict with domestic laws on freedom of expression (Thornberry, 2016). The VCLT ensures that such reservations are permissible only if they are compatible with the object and purpose of the treaty, offering guidance to states on how to balance national interests with international commitments.
Impact of ICERD on Global Racism Policies
The impact of ICERD on global policies to combat racism is multifaceted, encompassing legal reforms, institutional mechanisms, and societal changes. One of the most significant achievements of ICERD is the establishment of the Committee on the Elimination of Racial Discrimination (CERD), under Article 8, which monitors states’ compliance with the Convention through periodic reports and reviews (ICERD, 1965). The CERD Committee provides recommendations and general comments that guide states in interpreting and implementing ICERD’s provisions. For example, General Recommendation No. 35 on combating racist hate speech has clarified the scope of Article 4, urging states to adopt legislation that addresses both direct and indirect forms of racial incitement (CERD, 2013).
ICERD has also influenced national legislation across the globe. In South Africa, the end of apartheid was accompanied by constitutional and legal reforms aligned with ICERD’s principles, including the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act in 2000. Similarly, in Brazil, affirmative action policies to address racial inequalities in education and employment reflect the influence of ICERD’s call for special measures under Article 1(4) to ensure equal enjoyment of rights (ICERD, 1965). However, challenges remain in many regions, where discriminatory practices persist due to inadequate enforcement or political resistance. For instance, issues of racial profiling and xenophobia in migration policies in Europe and North America have been flagged by the CERD Committee as areas requiring urgent attention (OHCHR, 2021).
Another critical aspect of ICERD’s impact is its individual complaints mechanism under Article 14, which allows individuals or groups to submit communications to the CERD Committee regarding violations of their rights under the Convention (ICERD, 1965). Although only a minority of states have accepted this mechanism, it represents a pioneering step in making international human rights law directly accessible to victims of racial discrimination. Decisions and views adopted by the Committee in such cases have contributed to a limited but growing jurisprudence on racial discrimination, providing interpretive guidance for national courts and policymakers.
Challenges and Limitations in Implementing ICERD
Despite its significant contributions, the implementation of ICERD faces numerous challenges. One major issue is the lack of enforcement mechanisms. While the CERD Committee can issue recommendations, it lacks the power to compel states to comply, relying instead on moral and political pressure. This limitation is evident in cases where states fail to submit periodic reports or implement recommended reforms. Additionally, reservations entered by states upon ratification often dilute the effectiveness of key provisions. For example, several states have reserved the right not to fully implement Article 4 on hate speech, citing conflicts with constitutional protections for free speech (Thornberry, 2016).
Another challenge is the persistence of structural racism, which is often deeply embedded in societal norms and institutional practices. While ICERD addresses both intentional and unintentional discrimination, changing systemic inequalities requires long-term commitment and resources that many states are unable or unwilling to provide. The rise of populism and nationalism in recent years has further exacerbated racial tensions, with discriminatory rhetoric and policies gaining traction in various parts of the world. Addressing these issues necessitates not only legal reforms but also educational and cultural initiatives to foster tolerance and understanding, as mandated by Article 7 of ICERD (ICERD, 1965).
Lessons for Other Countries and Future Directions
The experience of states with ICERD offers valuable lessons for countries seeking to strengthen their commitments to combating racial discrimination. First, the importance of aligning national laws with international obligations cannot be overstated. Whether through a monist or dualist approach, states must ensure that domestic frameworks reflect the principles of ICERD, particularly in areas such as education, employment, and criminal justice. Second, the role of independent monitoring bodies like the CERD Committee highlights the need for accountability mechanisms to track progress and address shortcomings. Countries entering into treaties like ICERD should actively engage with such bodies and accept optional mechanisms like the individual complaints procedure under Article 14 to enhance enforcement.
The relationship between ICERD and the VCLT also provides a model for treaty-making and interpretation. States can draw on the VCLT’s principles to ensure that their engagement with ICERD is conducted in good faith and in line with international legal norms. This includes carefully considering the implications of reservations and ensuring that they do not undermine the Convention’s core objectives. Finally, addressing global racism requires cooperation beyond national borders. ICERD’s emphasis on promoting understanding among races (Article 7) underscores the need for international dialogue and solidarity in tackling shared challenges such as migration, economic inequality, and climate change, which often exacerbate racial tensions.
Conclusion
The International Convention on the Elimination of All Forms of Racial Discrimination remains a vital instrument in the global fight against racism. Through its comprehensive provisions, monitoring mechanisms, and influence on national policies, ICERD has shaped legal and societal responses to racial discrimination for over half a century. However, its effectiveness depends on the willingness of states to translate international commitments into tangible actions at the domestic level, whether through monist or dualist systems. The interplay between ICERD and the Vienna Convention on the Law of Treaties further underscores the importance of adhering to established norms of treaty-making and interpretation. As the world grapples with persistent and emerging forms of racial discrimination, ICERD continues to provide a framework for progress, reminding states of their shared responsibility to uphold the inherent dignity and equality of all members of the human family.
References
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- Dixon, M. (2013). Textbook on International Law (7th ed.). Oxford University Press.
- ICERD. (1965). International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly Resolution 2106 (XX).
- OHCHR. (2021). International Convention on the Elimination of All Forms of Racial Discrimination: 50 Years of Fighting Racism. United Nations Human Rights Office of the High Commissioner. Retrieved from OHCHR website.
- Thornberry, P. (2016). The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary. Oxford University Press.
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