Black Lives Matter and the UN Human Rights System: Reflections on the Human Rights Council Urgent Debate

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The protests against the police killings of George Floyd and many other Black people in the United States catalyzed a transnational movement. Around the world, people mobilized to express solidarity with protesters in the United States while also challenging U.S. imperialism, as well as systemic racism, colonialism, and police brutality in their own countries. The transnational dimension of this racial justice uprising was not coincidental. Rather, it reflected the transnational histories of colonialism and transatlantic slavery that shape systemic racism in law enforcement in different parts of the world, histories whose legacies continue to drive contemporary structures of racism. Through this uprising, the tireless work of Black Lives Matter movement organizers and other racial justice advocates have definitively shifted the transnational discourse surrounding race and structural inequality. Within weeks of the initial protests, a coalition of movement and NGO actors played a crucial role in forcing the United Nations Human Rights Council to hold an Urgent Debate on systemic racism in law enforcement. In the wake of these events, international lawyers and legal scholars, have an immense amount of work to do to interrogate international law as both a site of promise and peril for this extraordinary movement-led transnational racial justice project.

As Sejal Parmar’s analysis documents, the families of George Floyd, Breonna Taylor, Philando Castile, and Michael Brown joined over 600 human rights organizations in June 2020 to call for an emergency session of the UN Human Rights Council and a commission of inquiry to address racial police brutality in the U.S. The success of this mobilization in precipitating an Urgent Debate was itself a stunning and unprecedented achievement. It was the first time in the Council’s history that a special session has focused on systemic, anti-Black racism anywhere, let alone in a liberal democratic global hegemon such as the United States. All the same, the outcome of the debate was beyond disappointing. As someone who participated in the Urgent Debate with high hopes for advancement of the racial justice trajectory of the United Nations, I would characterize the outcome of the debate as no less than a direct repudiation of the equal worth of Black lives.

The relatively strong draft resolution first advanced by the Group of African States that condemned systemic racism and police brutality in the United States and called for a commission of inquiry into U.S. law enforcement was essentially eviscerated. In place of a commission of inquiry, the Human Rights Council authorized a report by the Office for the High Commissioner for Human Rights with no delineated state cooperation requirements, limited resources for already over-extended global mandates, and no specific focus on human rights abuses in the United States. Tellingly, the debate that framed the weakening of the draft resolution revealed that states and regional groupings that self-conceptualize as human rights defenders, including hegemonic liberal democracies, were incapable of and unwilling to name and confront structural racism as a systemic, transnational human rights crisis. Some participants in the debate argued that commissions of inquiry should be reserved for investigating states who possess no domestic accountability mechanisms or tackling only grave human rights violations by the worst violators. As Sejal Parmar’s contribution to this symposium has noted, this framing is troubling, and I would add that it is somewhat confounding. If the Black Lives Matter movement has sent any message, it is that legal accountability mechanisms in the U.S. and other liberal democracies of the global north are ill-equipped to address racist police brutality, precisely because racial subordination is systemically and institutionally embedded in contemporary law enforcement and criminal justice mechanisms in these countries.

Additionally, statements in the Urgent Debate to the effect that commissions of inquiry are to be reserved for grave violations by the worst violators imply that the quotidian brutality imposed upon Black people in the United States and elsewhere by law enforcement and criminal justice systems, somehow are insufficiently grave or that the perpetrators insufficiently bad to warrant international intervention. These statements are but a different register for communicating the persisting unequal worth of Black people, and the pernicious exceptionalism that is reserved for the countries in the global north that are in effect the most defensive of institutionalized white supremacy.

Some of the positions adopted by states within the Urgent Debate call to mind Makau Mutua’s seminal analysis in Savages, Victims, and Saviors, in which he mounts a sharp critique of embedded, racialized biases of the international human rights system. The outcome of the Debate suggests an inability of the system to position the United States as anything other than ‘savior,’ rendering the framework fundamentally incapable of challenging the structural racism that pervades the United States and other ‘savior’ nations. An international human rights system that shields powerful actors in Europe and North America from accountability, including through misplaced faith in liberal democratic institutions that have repeatedly failed to deliver racial justice, is not just an obstacle to racial justice; such an international human rights system itself embodies and perpetuates structural racism.

On what foundation, then, can international lawyers, scholars and others ground a transnational reparative mission that is responsive to the calls of the global Black Lives Matter movement? In the face of the widespread failure of domestic law to provide accountability and redress for racialized police brutality, international law and institutions present themselves as potential alternative sites for pushing for change. In my capacity as Special Rapporteur on Contemporary Forms of Racism, I have argued that states have obligations under international human rights law to pursue reparative justice for historical and contemporary racial injustices. Central to reparations is undoing structures of systemic racism rooted in historical legacies of colonialism and slavery. At a minimum, international lawyers and human rights lawyers are positioned to activate existing legal structures that have some capacity to advance reparations for racial discrimination and inequality. For instance, the International Convention  on the Elimination of All Forms of Racial Discrimination (ICERD) is a central pillar of international efforts to eradicate racial injustice. ICERD codifies international standards for eliminating racial inequality and racial discrimination, and the treaty provisions if better implemented, would bring most nations a lot closer to justice and equality. Yet ICERD remains a marginal treaty in international legal scholarly analysis, in international human rights education, and even in international human rights advocacy.

Around the world, Black Lives Matter and other movements have facilitated the local production of knowledge of what reparative justice looks like. Community organizers, activists, and thinkers have created the blueprints for reparations in their communities. In the United States, for example, community-based organizers have advanced visions of reparations that would include the abolition of policing that systematically undermines the public safety of Black communities, alternatives to incarceration, and other steps toward liberation. These transformative visions center the lives and lived experiences of the victims of systemic racism in the United States. International lawyers interested in tackling structural racism need not look to the Palais des Nations or UN Plaza for the full potential of human rights. In the words of Mari Matsuda, they should instead ‘look to the bottom’ in order to reimagine international interventions that might help take us beyond the sort of outcome that resulted from the Urgent Debate.

In the context of international law, following Matsuda’s call requires, at the very least using international law (to the extent possible) to pursue the reparative visions advanced by community-centered organizations like Dignity and Power Now or Critical Resistance. International lawyers should be working closely with the communities at the forefront of struggles for racial justice to transform international human rights frameworks in ways that bring these frameworks closer to the racial justice visions advanced by movements, and in ways that make it harder for states to legitimate the sort of outcome we witnessed from the Urgent Debate. The solution to systemic racial injustice by no means lies within the international human rights framework or system, including for reasons highlighted by Lawrence Hill-Cawthorne in his post, but the system could definitely be mobilized in ways that take us closer and not further from the goal.

The point is not that national and local racial subordination will be eradicated through international law and institutions. Indeed as the outcome of the Human Rights Council’s Urgent Debate illustrates, there is a limit to the reparative capabilities of our current international legal system. International law itself has played a central role in the transnational systems of racial domination and imperialism, and states continue to use appeals to doctrine, tradition, or neo-imperial discourses to evade their obligations to harmed individuals and communities. In this sense, the movement for transnational racial justice must also be a decolonial project. International lawyers have the monumental responsibility and opportunity to begin identifying international legal doctrines which are ill-suited for achieving reparative racial justice and in their place, envisioning new legal principles capable of achieving reparations. This process will involve the active imaginations of international lawyers, but it should be grounded in legal and value systems drawn from indigenous, Black, and non-imperial sources. The experiences, proposals, and demands of the Black Lives Matter movement, indigenous peoples, and other subordinated communities must be the epistemic vanguard of a better future for international law.

In summary, the Black Lives Matter movement is simultaneously a hyper-local and transnational uprising against racism, colonialism, police brutality, and structural inequality. The expressions of global solidarity which have stretched from Australia to Syria represent not just collective outrage, but the collective hope that our world can finally begin to reckon with systemic racism, whether it manifests through the effects of pandemics or police brutality. Black and indigenous people, alongside other communities subordinated by racism, xenophobia, patriarchy, and inequality, have through their movement advocacy shared blueprints for the reparative change required for more just societies. International lawyers and others must follow their movement lead.

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Jan-Phillip Graf says

December 15, 2020

Dear Professor Achiume,

What a great an inspiring post! I can see how some parts of international law, for instance investment law, are complicit in upholding a neocolonial international order. Could you give a more concrete example though, on what is problematic about the norms of human rights law? Is it their selective application? Their origin in European law? Their perceived prejudices about the Gobal South?

I would highly appreciate an example on how we can rethink international human rights law, responding to the demands of the BLM movement.

Thank you so much for such an insightful post!