Abstract
This article examines the global fight against racism through the lens of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), a pivotal human rights instrument adopted by the United Nations General Assembly in 1965. It explores the legal framework provided by ICERD for combating racial discrimination, delving into its key provisions, implementation mechanisms, and impact on state behavior. Additionally, the article addresses the legal processes by which a hypothetical country can enter into treaties like ICERD, focusing on the monist and dualist approaches to international law and their implications for translating treaty obligations into national law. The relationship between ICERD and the Vienna Convention on the Law of Treaties (VCLT) of 1969 is analyzed to assess how this informs treaty-making processes. Through a detailed examination of ICERD’s articles and global case studies, the article evaluates the convention’s successes, challenges, and its enduring relevance in addressing systemic racism worldwide.
Introduction
Racism remains a pervasive global issue, manifesting in systemic inequalities, hate crimes, and social exclusion across diverse societies. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted on 21 December 1965 by the United Nations General Assembly through Resolution 2106 (XX) and entering into force on 4 January 1969, represents a cornerstone in international human rights law aimed at eradicating racial discrimination. As of recent data, ICERD has been ratified by 182 states, demonstrating widespread commitment to its principles (United Nations, 2023). This article seeks to analyze ICERD’s impact on combating global racism by exploring its legal provisions, state implementation, and challenges in enforcement. Furthermore, it investigates how states enter into such treaties, focusing on a hypothetical country’s legal framework for treaty-making, the monist and dualist approaches to international law, and the role of the Vienna Convention on the Law of Treaties (VCLT) of 1969 in shaping treaty relations with ICERD. Through this analysis, the article aims to offer insights into strengthening global efforts against racial discrimination.
The Legal Framework of ICERD and its Key Provisions
ICERD is a third-generation human rights instrument that commits state parties to eliminate racial discrimination in all its forms and promote understanding among races. Article 1(1) of ICERD defines racial discrimination 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 unintentional discrimination, addressing systemic and structural issues.
Article 2 of ICERD mandates state parties to undertake measures to eliminate racial discrimination by condemning it, pursuing policies to eradicate it, and reviewing governmental policies to amend or repeal any laws that have discriminatory effects. Furthermore, Article 4 requires states to criminalize hate speech and the dissemination of ideas based on racial superiority, as well as membership in racist organizations. This provision has been instrumental in prompting states to enact anti-hate speech laws, though implementation varies widely due to differences in national legal systems and cultural contexts (OHCHR, 2023).
Article 5 guarantees equality before the law, ensuring rights such as freedom of expression, access to justice, and economic opportunities without discrimination. Meanwhile, Article 6 obliges states to provide effective remedies through national tribunals for acts of racial discrimination, while Article 7 emphasizes the role of education and information in combating prejudices. These provisions collectively establish a comprehensive framework for addressing racism at both individual and systemic levels.
The Committee on the Elimination of Racial Discrimination (CERD), established under Article 8, monitors compliance by reviewing state reports (as mandated by Article 9) and addressing individual complaints under the optional mechanism of Article 14. This mechanism, though underutilized due to limited state acceptance, has contributed to a modest jurisprudence on ICERD’s application (OHCHR, 2021).
Impact of ICERD on Combating Global Racism
ICERD has had a profound influence on national and international efforts to combat racism. By establishing a universal standard, it has encouraged states to enact anti-discrimination legislation. For instance, South Africa, post-apartheid, aligned its constitution and laws with ICERD principles, particularly Article 2, to dismantle systemic racial inequalities (Mandela, 1995). Similarly, countries like Brazil have implemented affirmative action policies inspired by ICERD’s emphasis on special measures under Article 1(4) to address historical disadvantages faced by marginalized groups (Htun, 2004).
The convention’s reporting mechanism under Article 9 has fostered dialogue between states and CERD, enabling the identification of gaps in policy implementation. However, challenges persist, including inconsistent compliance, lack of political will, and reservations by some states on key provisions like Article 4, citing conflicts with national laws on free speech (OHCHR, 2023). Additionally, structural racism, deeply embedded in economic and social systems, remains a significant barrier, as seen in disparities in policing and incarceration rates in countries like the United States (American Bar Association, 2020).
Globally, ICERD has inspired regional instruments, such as the Inter-American Convention Against Racism, Racial Discrimination, and Related Forms of Intolerance by the Organization of American States, reflecting its role as a normative blueprint (OAS, n.d.). Yet, the rise of xenophobia and racial profiling, particularly against migrants and minorities, underscores the ongoing relevance and urgency of ICERD’s principles in contemporary contexts (United Nations, 2025).
Treaty-Making Process: How a Country Can Legally Enter into Treaties Like ICERD
The ability of a country to enter into international treaties such as ICERD depends on its domestic legal and constitutional framework. While ICERD itself does not prescribe how states should accede to or ratify treaties, it is understood within the broader context of international law that states must follow their constitutional processes for treaty-making. For illustrative purposes, this section considers a hypothetical country to explore these mechanisms, focusing on the relevant provisions of ICERD and general principles of international law.
Under Article 19 of ICERD, the convention outlines the process of entry into force, stating that it becomes effective on the thirtieth day after the deposit of the twenty-seventh instrument of ratification or accession with the United Nations Secretary-General. This implies that any state wishing to join ICERD must first complete its domestic approval process before depositing its instrument of ratification or accession. Article 17 further specifies that the convention is open for signature by any UN member state or state invited by the General Assembly, indicating the procedural steps for becoming a party (ICERD, 1965).
In the case of a hypothetical country, the legal authority to enter treaties typically resides with the executive branch, often the head of state or government, subject to legislative approval depending on the country’s constitution. For example, if the country operates under a parliamentary system, the executive might negotiate and sign the treaty (as per the process hinted at in Article 17 of ICERD), but ratification may require parliamentary consent to ensure democratic oversight. This process ensures that the commitment to eliminate racial discrimination, as mandated by ICERD, aligns with national priorities and legal capacities.
Monist vs. Dualist Approaches to Treaties and National Law Implementation
The integration of international treaties like ICERD into domestic law varies based on whether a country adopts a monist or dualist approach to international law. In a monist system, international treaties automatically become part of national law upon ratification, requiring no additional legislative action. Such a system streamlines the implementation of ICERD’s provisions, as seen in countries like the Netherlands, where ratified treaties can be directly invoked in domestic courts (Cassese, 2005).
Conversely, in a dualist system, treaties do not automatically become part of national law and require domestic legislation to be enacted for their provisions to be enforceable. For instance, in a dualist country like the United Kingdom, the principles of ICERD would need to be incorporated through specific acts of Parliament before they can be applied domestically (Aust, 2013). For our hypothetical country, let us assume it follows a dualist approach, meaning that after ratifying ICERD as per Articles 17 and 19, the government must pass legislation to align national laws with obligations under Articles 2, 4, and 5, such as enacting anti-discrimination statutes or criminalizing hate speech.
The choice between monist and dualist systems significantly affects the speed and efficacy of implementing ICERD. In dualist systems, delays in passing enabling legislation can hinder compliance, whereas monist systems may face challenges in harmonizing treaty obligations with pre-existing national laws. Regardless of the approach, Article 2 of ICERD imposes a clear obligation on states to “take effective measures” to eliminate discrimination, necessitating active steps to translate treaty commitments into actionable policies (ICERD, 1965).
ICERD and the Vienna Convention on the Law of Treaties (VCLT) 1969
The Vienna Convention on the Law of Treaties (VCLT), adopted in 1969, codifies the rules governing treaty formation, interpretation, and enforcement. While ICERD predates the VCLT, having been adopted in 1965, the principles of the VCLT are widely regarded as reflecting customary international law and thus apply retroactively to treaties like ICERD. However, ICERD itself is not a “party” to the VCLT, as treaties are agreements between states, not independent entities. Instead, the state parties to ICERD are bound by the VCLT if they have ratified it or accept its principles as customary law (Villiger, 2009).
Under Article 11 of the VCLT, a state’s consent to be bound by a treaty can be expressed through signature, ratification, acceptance, approval, or accession, which aligns with the procedures outlined in Article 17 of ICERD for joining the convention. Furthermore, Article 26 of the VCLT establishes the principle of “pacta sunt servanda,” meaning treaties must be performed in good faith—an obligation that applies to ICERD state parties in fulfilling their commitments under Articles 2 and 5 to eliminate discrimination (VCLT, 1969).
For other countries considering entering into treaties with ICERD (i.e., becoming state parties), the VCLT provides a universal framework for treaty-making. It advises states to ensure clear consent, avoid reservations incompatible with the treaty’s object and purpose (as per Article 19 of the VCLT), and interpret treaty provisions in good faith under Article 31. This is particularly relevant given some states’ reservations to ICERD’s Article 4 on hate speech due to national constitutional protections for free expression. The VCLT’s guidance can help harmonize such conflicts by encouraging dialogue and ensuring that the core objectives of ICERD are upheld (Sinclair, 1984).
Challenges and Criticisms of ICERD Implementation
Despite its achievements, ICERD faces significant hurdles in achieving universal elimination of racial discrimination. One major challenge is the lack of enforcement mechanisms. While CERD can issue recommendations, it lacks the authority to compel compliance, relying on state cooperation (Thornberry, 2016). This is evident in cases where states fail to submit reports under Article 9 or implement CERD recommendations, undermining accountability.
Cultural relativism also poses a barrier, as some states argue that ICERD’s standards conflict with local norms or practices. For example, certain countries resist criminalizing hate speech under Article 4, citing freedom of expression as a countervailing right, leading to inconsistent global application (Banton, 1996). Additionally, the optional nature of Article 14, which allows individual complaints to CERD, means that only a fraction of state parties have accepted this mechanism, limiting access to justice for victims of discrimination (OHCHR, 2021).
Economic disparities further complicate ICERD’s implementation. Developing states often lack the resources to enact comprehensive anti-discrimination policies or provide remedies as required by Article 6, highlighting the need for international cooperation and assistance. The intersectionality of race with other forms of discrimination, such as gender or class, is another area where ICERD’s framework requires adaptation to address compounded inequalities effectively (Crenshaw, 1989).
The Way Forward: Strengthening ICERD’s Role in Combating Racism
To enhance ICERD’s impact, several measures are necessary. First, increasing state acceptance of Article 14’s complaints mechanism would empower individuals to seek redress directly, strengthening accountability. Second, CERD should prioritize capacity-building initiatives, particularly in developing countries, to support legislative and policy reforms aligned with Articles 2 and 5. International funding and technical assistance can play a critical role here (United Nations, 2007).
Third, addressing structural racism requires a broader interpretation of ICERD’s provisions, incorporating intersectional approaches to tackle overlapping discriminations. CERD’s evolving jurisprudence, as a “living instrument,” can guide this process by adapting to contemporary challenges like digital hate speech or systemic inequities in artificial intelligence (Human Rights Law Review, 2020). Finally, raising public awareness through education, as mandated by Article 7, remains crucial to combat prejudices at the grassroots level.
For states entering treaties like ICERD, adopting transparent and inclusive ratification processes—whether monist or dualist—ensures that treaty obligations are effectively integrated into national law. Learning from the VCLT’s principles, states should approach treaty-making with a commitment to good faith and minimal reservations, preserving the integrity of ICERD’s objectives.
Conclusion
The International Convention on the Elimination of All Forms of Racial Discrimination stands as a vital instrument in the global fight against racism, providing a legal and moral framework for state action through its comprehensive provisions under Articles 1 to 22. Its impact is evident in legislative reforms, policy shifts, and international dialogue, though challenges such as inconsistent compliance, cultural relativism, and resource constraints persist. Understanding how states, including a hypothetical country, legally enter into treaties like ICERD—via constitutional processes, monist or dualist approaches, and alignment with VCLT principles—offers critical insights into enhancing global cooperation. While ICERD is not a party to the VCLT, the latter’s norms on treaty-making inform how states can effectively commit to anti-discrimination obligations. Moving forward, strengthening ICERD’s enforcement mechanisms, addressing structural racism, and promoting universal adherence to its principles are essential to realizing a world free from racial discrimination.
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