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Human Rights and World Public Order - The Basic Policies of an International Law of Human Dignity, 2nd Edition by McDougal, Myres S; Lasswell, Harold D; Chen, Lung-chu

Part 3 Trends in Decision and Conditioning Factors: Claims Relating to Respect, Nine Claims Relating to Racial Discrimination

From: Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (2nd Edition)

Myres S. McDougal, Harold D. Lasswell, Lung-chu Chen

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 October 2019

Subject(s):
Race

(p. 569) Nine  Claims Relating to Racial Discrimination

Factual Background

The deprivations imposed as “racial discrimination” are made under the aegis of a group categorization which, even when “race” is supplemented by such ancillary concepts as “color,” “ethnic origin,” “national origin,” “descent,” and “birth,”1 makes a most ambiguous and incomplete reference to empirical fact. The popular categorizations of “race,” whether by officials or nonofficials when indulging in “man’s most dangerous myth,”2 are built upon vague, shifting, and erratic references to such factors as skin color, body build, eye cast or color, hair texture, nose shape, blood type, genetic affiliation, and historical or cultural association.3 “To most people,” a 1950 UNESCO statement realistically asserts, “a race is any group of people whom they choose to describe as a race.”4 The statement elaborates:

Thus, many national, religious, geographic, linguistic or cultural groups have, in such loose usage, been called “race,” when obviously Americans are not a race, nor are Englishmen, nor Frenchmen, nor any other national group. Catholics, Protestants, Moslems, and Jews are not races, nor are groups who speak English or any other language thereby definable as a race; people who live in Iceland or (p. 570) England or India are not races; nor are people who are culturally Turkish or Chinese or the like thereby describable as races.5

Even the characterizations of “a race” offered by scientists, though displaying a somewhat more stable reference to objectively ascertainable factors, commonly admit of highly diverse application to individual human beings.6 The core reference appears to be to subgroups within the closed species of man which are genetically open but exhibit “some distinguishing genetic variability.”7 Thus, Dobzhansky, in identifying mankind as “a complex Mendelian population, a reproductive community all members of which are connected by ties of mating and parentage,”8 and describing a “Mendelian population” as one which possesses “a common gene pool,”9 defines “races” as “arrays of Mendelian populations belonging to the same biological species, but differing from each other in incidence of some genetic variants.”10 He adds that the “delimitation of the Mendelian populations which are called races is always to (p. 571) some extent vague, because their gene pools are not wholly disjunct.”11 Similarly, Osborne emphasizes: “Most important is the fact that subspecies and races, unlike species, are not closed genetic or evolutionary units, but simply breeding populations within which a significant number of individuals carry a particular variant of a gene common to the species.”12 He also adds: “What is taken as a meaningful ‘racial’ differentiation within any given species will depend entirely upon the classifier, the circumstances, and the purposes of the classification.”13 Further, it would appear that even among scientists a diversity of references as to the core meaning of race causes difficulties. Thus, Scott observes:

From a biological viewpoint the term race has become so encumbered with superfluous and contradictory meanings, erroneous concepts, and emotional reactions that it has almost lost its utility. Any scientist who continues to use it will run a major risk of being misunderstood, even if he rigorously limits his own definition. He will run the additional risk in his own thinking of finding it difficult to avoid past misconceptions.14

The value deprivations, both historical and continuing, imposed through “racial” discrimination and its equivalences, always comprehensive and intensive, may be subtle and hidden or open and horrendous.15 (p. 572) When racial discrimination is a systematic instrument of state policy, deprivations may begin by denying respect through official classification of populations in racial terms, such as the dichotomy of “Aryans” and “non-Aryans” under the Nazis16 and the fourfold classification employed in South Africa today.17 Such classifications may be reinforced by elaborate systems of identification by which members of deprived groups are required to carry identity cards and to wear specified insignia of humiliation.18 In such regimes, the degree and scope of an individual’s (p. 573) participation in the different community value processes are dictated more by the arbitrary racial label attached to the individual than by his or her unique capabilities and potentialities. The degree of respect—the freedom of choice and esteem by self and others—which a person may enjoy is determined by the group to which he or she is assigned; segregation in access to public amenities and accommodations and compulsory gestures of submission may be constant reminders of disrespect.19

The total domination by one racial group over another may epitomize deprivations in the power process. In the name of race, individuals are often disfranchised outright or by such devices as weighted voting;20 they also are denied access to officeholding—appointive and elective, local and national, executive and judicial, civilian and military.21 Discriminatory measures may be taken to deprive individuals of nationality,22 to effect banishment (expulsion),23 or to deny emigration or travel (p. 574) abroad.24 For being or not being a member of a specified racial group, individuals may also be denied access, temporarily or permanently, to territorial communities.25 Other measures of power deprivation include arbitrary arrest and detention,26 police brutality and torture,27 differential justice for various groups through perversion of the judicial process,28 and exclusion from military training and service.29

Enlightenment is restricted when access to educational institutions is denied because of racial group membership. This may take the form of exclusion from higher education30 or from elementary and secondary schools,31 or exclusion from educational employment such as teaching and research.32 A racial quota system may be rigidly imposed for access (p. 575) to different educational institutions.33 Separate and unequal educational opportunities and facilities prevail where race is a critical factor in social process.34 Other forms of privation include denial of access to the mass media and the suppression of dissent.35 In relation to skill, members of particular groups may be denied opportunity to discover and fully develop their latent talents. By being denied access to adequate schooling, they are often deprived of the acquisition of socially significant skills.36 Other forms include denial of the practice of the liberal professions, notably law, medicine, and dentistry,37 and denial of pursuit of “artistic or cultural activities.”38

In deprivations of wealth, race may be employed to limit access to resources and the enjoyment of income. Under the guise of an economic “division of labor,” race discrimination may become a device for preserving an ample supply of cheap labor and perpetuating an inherited relationship of economic exploitation.39 Because of racial groupings, individuals may be denied access to certain occupations and professions; they may be underpaid in relation to others for the same type of employment; and they may be denied job advancement.40 The ownership, purchase, and sale of land and other property may be curtailed or forbidden because of race.41 Practices bordering on forced labor may be visited upon deprived racial groups.42 Other measures of wealth deprivation include expropriation of property, freezing of personal assets, and imposition of special taxes.43

(p. 576) The extremes in deprivations of well-being on grounds of race may include systematic extermination (genocide) and torture of all types.44 Racially deprived groups, victims of poverty, suffer starvation, malnutrition, diseases, and poor health services;45 they are often excluded from necessary health facilities and left more exposed than other groups to physical abuse and hazards. They sometimes become victims of human experimentation.46 They suffer a higher rate of mortality, infant and adult alike, in comparison with other members of the community.47 Racially segregated housing generally leads to the concentration of deprived groups in ghettos.48

The shaping and sharing of affection may be drastically impaired because of racial categorizations. Deprivations include the prohibition of interracial marriages and sexual relations between people of different races, and the termination of interracial marriages already consummated.49 When segregated and isolated, people are handicapped in developing genuinely congenial personal relationships of any kind. Other forms of deprivation are the denial of custodian rights to parents of an allegedly inferior race50 and the prohibition of adoption crossing racial (p. 577) lines.51 Under the perverse influence of the race myth, even a community’s norms of rectitude are formulated and pursued under a double standard. What is permissible for one racial group may be forbidden to another. People may not be permitted to worship the same god or even to go to the same churches; places of public worship may be destroyed on account of race.52 The cumulative impact of racial discrimination tends to foster a negative self-image among members of deprived groups, further handicapping their responsible participation in community processes.53

Basic Community Policies

A basic policy in any community that honors shared respect must be that of affording every individual member of the community full opportunity to discover, mature, and exercise his or her capabilities and potentialities, both for self-development and for contribution to the aggregate common interest.54 All practices which differentiate between individuals upon the basis of alleged “racial” characteristics, whether in popular or scientific conception, would appear to be entirely destructive of this policy.

The justification commonly given for racial discrimination, as for caste differentiation and the practices of apartheid, is that some groups of people are inherently superior to other groups because of their biological (p. 578) inheritances.55 Discrimination, it is argued, facilitates a more effective use of limited resources, in the aggregate common interest, if the alleged facts of inherent superiority and inferiority among groups are accepted as a basis for differential treatment and assignment of individuals’ roles in ongoing social processes.

It should be obvious that none of the popular conceptions of race, based upon random combinations of physical features and cultural associations, bears any rational relation to the capabilities and potentialities of an individual for either self-development or contribution to the common interest. As Allport has observed:

Most people do not know the difference between race and ethnic group, between race and social caste, between nurture and nature. It makes for an economy of thought to ascribe peculiarities of appearance, custom, values, to race. It is simpler to attribute differences to heredity than to juggle all the complex social grounds for differences that exist.56

When conceptions of this kind, of vague empirical references with no scientific basis, are employed by officials and others to make important differentiations among individuals, opportunities for arbitrary deprivation and oppression abound.

(p. 579) It is scarcely less obvious that scientific conceptions of race, designed roughly to distinguish large groups for broad purposes of inquiry, can be made to differentiate individuals in terms of potentialities only with great violence to fact. When creating racial categorizations scientists are, as Osborne emphasizes, “examining a population as a whole and comparing the pattern of gene frequencies of that entire population with another population”;57 they are not purporting to specify the detailed characteristics or potentialities of any particular member of the group. In most scientific conceptions, further, the differences in potentialities within any particular group are greater than any of the differences between groups. In the words of Dobzhansky,

the striking fact, which not even the racists can conceal, is that the race differences in the averages are much smaller than the variations within any race. In other words, large brains and high IQ’s of persons of every race are much larger and higher than averages for their own or any other race. And conversely, the low variants in every race are much below the average for any race.58

Similarly, after exhaustive inquiry, Baker concludes:

Every ethnic taxon of man includes many persons capable of living responsible and useful lives in the communities to which they belong, while even in those taxa that are best known for their contributions to the world’s store of intellectual wealth, there are many so mentally deficient that they would be inadequate members of any society. It follows that no one can claim superiority simply because he or she belongs to a particular ethnic taxon.59

It remains unknown how such differences between individuals in capabilities and potentialities as do exist depend upon differences in heredity and environment. Dobzhansky is again an excellent witness: “The plain truth is that it is not known just how influential are the genetic variables in psychic or personality traits, or how plastic these traits might be in different environments that can be contrived by modern technology, medicine, and educational methods.”60

(p. 580) The continuing challenge for all dedicated to a commonwealth of human dignity is, thus, that of creating and maintaining a society which encourages and assists all individuals to develop and exercise their fullest capabilities in the shaping and sharing of all values. “The birthright of every human being,” Ashley Montagu aptly asserts, “should be the recognition of his uniqueness, and the opportunity to develop that uniqueness to the optimum.”61 While extraordinary opportunities may be afforded the extraordinarily gifted, every effort should be made, in the interest both of shared respect and of the greatest aggregate production of community values, to provide every individual with the opportunity and facilities for overcoming any unique biological limitations, whether or not associated with imputed genetic deficiencies. Shared respect requires nondiscrimination for reasons irrelevant to potentialities, and shared respect is a fundamental component in any rational conception of human dignity. The important emphasis was made by Charles Darwin a century ago:

Although the existing races of man differ in many respects, as in colour, hair, shape of skull, proportions of the body, &c., yet if their whole structure be taken into consideration they are found to resemble each other closely in a multitude of points. Many of these are of so unimportant or of so singular a nature, that it is extremely improbable that they should have been independently acquired by aboriginally distinct species or races. The same remark holds good with equal or greater force with respect to the numerous points of mental similarity between the most distinct races of man.62

(p. 581) He added:

As man advances in civilization, and small tribes are united into larger communities, the simplest reason would tell each individual that he ought to extend his social instincts and sympathies to all members of the same nation, though personally unknown to him. This point being once reached, there is only an artificial barrier to prevent his sympathies extending to the men of all nations and races.63

The significance for common interest of “the self-actualization of human individuals and the fullest possible realization of their socially valuable capacities and potentialities”64 has been well stated by Dobzhansky:

Individuals and groups will arrange their lives differently, in accordance with their diverse notions of what form of happiness they wish to pursue. Their contributions to mankind’s store of achievements will be different in kind and different in magnitude. The point is, however, that everybody should be able to contribute up to the limit of his ability. To deny the equality of opportunity to persons or groups is evil because this results in wastage of talent, ability, and aptitude, besides being contrary to the basic ethic of humanity.65

Trends in Decision

The concerted community effort in recent decades to combat and eradicate racial discrimination has been a driving force behind the emergence of the more general norm of nondiscrimination. Prior to the establishment of the United Nations, the global community provided individuals scant protection against discrimination on racial or other grounds. Some modest protection, “though hesitating and infrequent,”66 was afforded by the doctrine of humanitarian intervention. The early assertions of a right of humanitarian intervention were made predominantly for the protection of oppressed religious groups,67 yet (p. 582) the victims for whom protection was extended upon occasion included groups of distinctive national or ethnic origin, such as the Greek people oppressed by Turkey from 1827 to 183068 and the Armenians oppressed by Turkey before World War I.69

A more substantial step was taken when, following World War I, the League of Nations was empowered to oversee an international regime for the protection of “racial, religious or linguistic minorities.”70 The victorious Principal Allied and Associated Powers, through treaty stipulations, imposed upon Poland, Czechoslovakia, the Serb-Croat-Slovene State (Yugoslavia), Romania, Greece, Austria, Bulgaria, Hungary, and Turkey special obligations to protect minority groups within their respective boundaries.71 These states undertook to “assure full and complete protection of life and liberty” to all their inhabitants “without distinction of birth, nationality, language, race or religion.”72 Similar obligations were assumed by Albania, Estonia, Latvia, Lithuania, and Iraq upon their admissions to the League of Nations.73 To ensure the fulfillment of these obligations, the provisions affecting “persons belonging to racial, religious, or linguistic minorities” were made “obligations of international concern,”74 placed under the guarantee of the League of (p. 583) Nations,” and they could not be modified “without the assent of a majority” of the League Council.75 The Council was further authorized to “take such action and give such directions as it may deem proper and effective” when a complaint of violation was brought to its attention.76

The contemporary broad prescription against discriminations imposed by group categorizations of “race” has its origins in the United Nations Charter and certain authoritative ancillary expressions and commitments. The importance which most of mankind today ascribes to the prohibition of race as a ground for differentiation is clearly evidenced by the prominent place accorded race and its equivalents in all the various recent enumerations of impermissible grounds. Thus, the Charter of the United Nations, in Article 1(3), projects one of its purposes as “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” and the Charter restates this concern in Articles 13(1)(b),77 55(c),78 and 76(c)79 in the chapters dealing with the functions (p. 584) of the General Assembly, “International Economic and Social Co-operation,” and “International Trusteeship System.” Similarly, the Universal Declaration of Human Rights stipulates, in Article 2, that its protections are to be extended “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”80 In Article 7 it provides for equal protection before the law “without any discrimination.”81

This same theme is carried forward in the Discrimination (Employment and Occupation) Convention, adopted in June 1958 under the auspices of the International Labor Organization, which was designed to ensure “equality of opportunity and treatment in respect of employment and occupation. . . .”82 This Convention specifically prohibits, in Article 1(I)(a), any discrimination “on the basis of race, colour, sex, religion, political opinion, national extraction or social origin. . . .83 The Convention against Discrimination in Education, adopted in December 1960 under the auspices of the United Nations Educational, Scientific, and Cultural Organization, seeks to “promote equality of opportunity and treatment for all in education.”84 This Convention prohibits, in Article 1(1), any discrimination in the field of education because of “race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth.”85

The more recent International Covenants on Human Rights, incorporating precisely the wording and order of Article 2 of the Universal Declaration of Human Rights, also explicitly prohibit discrimination on grounds of race. Thus, the International Covenant on Civil and Political Rights, in Article 2(1), requires that a state “ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”86 The provision for equality before the law, in Article 26, guarantees “to all persons equal and effective protection (p. 585) against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”87 The International Covenant on Economic, Social, and Cultural Rights, in Article 2(2), imposes a comparable prohibition upon states for protection of all the rights which it enunciates.88

The general community prescription against racial discrimination has been further articulated and fortified by the adoption of the United Nations Declaration on the Elimination of All Forms of Racial Discrimination in November 1963,89 and of the International Convention on the Elimination of All Forms of Racial Discrimination in December 1965.90 In the winter of 1959–60, as “an epidemic of swastika-painting and other ‘manifestations of anti-Semitism and other forms of racial and national hatred and religious and racial prejudices of a similar nature’ ”91 swept through a number of states in Europe and Latin America, the Sub-Commission on Prevention of Discrimination and Protection of Minorities took the “unprecedented”92 step of condemning these manifestations as violations of the Charter of the United Nations and the Universal Declaration of Human Rights.93 The Sub-Commission, in gathering, processing, and studying all the relevant information, brought the matter to (p. 586) the attention of its superior bodies and urged effective measures of prevention and eradication, especially the formulation of an international convention.94 The General Assembly, at its seventeenth session in 1962, decided to prepare two separate sets of instruments: one set (a draft declaration and a draft convention) on “the elimination of all forms of racial discrimination” and the other on “the elimination of all forms of religious intolerance,” with priority being accorded to the former.95 This “compromise solution”96 was reached largely because the Arab delegations wished to downplay the issue of anti-Semitism and because the Eastern European and other delegations insisted that the question of religious discrimination was far less important and urgent than that of racial discrimination.97 Thereafter, on November 20, 1963, the General Assembly adopted the United Nations Declaration on the Elimination of All Forms of Racial Discrimination.98 Meanwhile, the preparation of the draft convention on racial discrimination was under way. The Commission on Human Rights, building upon a text prepared by the Sub-Commission,99 completed its draft in 1964,100 and the draft was considered by the Third Committee of the General Assembly in 1965.101 The General Assembly, on December 21, 1965, adopted the International (p. 587) Convention on the Elimination of All Forms of Racial Discrimination.102 As of this writing, the envisaged Declaration and Convention on the Elimination of Religious Intolerance are yet to be adopted.103

The Declaration on the Elimination of Racial Discrimination, in solemnly affirming “the necessity of speedily eliminating racial discrimination throughout the world, in all its forms and manifestations.”104 proclaims that discrimination on the ground of “race, colour, or ethnic origin” is “an offense to human dignity,” “a denial of the principles of the Charter of the United Nations,” and “a violation” of the Universal Declaration of Human Rights.105 The Declaration, extending its concern to acts of states as well as of private institutions or groups and individuals,106 urges that special efforts be made to prevent racial discrimination, especially in “civil rights, access to citizenship, education, religion, employment, occupation, and housing,”107 and in “equal access to any place or facility intended for use by the general public.”108 The Declaration condemns racist propaganda and organizations and urges that “all incitement to or acts of violence” against any racial group be made “punishable under law.”109 States are further urged to take steps to outlaw and prosecute racist organizations.110 To ensure equal treatment of individuals, states are urged to “take effective measures to revise governmental and other public policies,” “rescind” discriminatory “laws and regulations,” and “pass” necessary legislation of protection.111

The International Convention on the Elimination of All Forms of Racial Discrimination, in reinforcing the preceding Declaration, represents “the most comprehensive and unambiguous codification in treaty form of the idea of the equality of race.”112 In spelling out its prohibition of discrimination, the Convention specifies in comprehensive and detailed terms the impermissible grounds for differentiation, the particular acts forbidden, and the various actors who are precluded from engaging in discrimination. Beyond the mere prohibition of activities, the bare characterization of unlawfulness, the Convention further seeks (p. 588) to cope with some of the causes of discrimination and to project procedures which may serve the purposes of preventing and deterring discrimination, as well as of restoring and rehabilitating already exacerbated situations.

The group categorization of “race,” offered by the Convention in Article 1(1),113 is as broad and generous as the group characterization commonly employed in discrimination is vague and arbitrary. In implementing its stated objective of banning racial discrimination “in all its forms and manifestations,”114 the Convention adds to “race” the ancillary concepts of “colour, descent, or national or ethnic origin. . . . ”115 Though the travaux preparatoires indicate no very precise reference for “race,”116 it appears that the framers of the Convention intended to catch all the traditional biological and cultural meanings. The UNESCO statements on race were, as several commentators have noted,117 current at the time the Convention was prepared, and it would appear a reasonable interpretation, in light of the major purposes of the Convention, that all the biological and cultural categorizations included within these statements are among those condemned by the Convention.118 The reach of the prohibited categorization of color—since people come in many gradations of white, black, yellow, and brown, and since almost all groups may be observed to have some uniqueness119—would appear to be equally broad. The concept of “national origin,” specified as different from “nationality” in the sense of present membership in a state, has (p. 589) been said to include both “politico-legal” and “ethnographical” (or “historico-biological”) senses.120 Deriving its vagueness from its origin in the minorities treaties after World War I,121 this concept apparently is intended to refer to a person’s prior identifications, whether chosen or ascribed, with states and with the larger cultural groups (popularly known as nations) which transcend any particular state.122 The words “ethnic origin,” again, refer to both biological and cultural characteristics with a diversity bewildering even in scientific usage.123 “Any discrimination,” concludes one commentator, “based on an individual’s cultural identification may be tantamount to discrimination on ethnic grounds.”124 The group characterization unique to this Convention, that of “descent,” was, as elaborated in a previous chapter, introduced by the delegation of India to outlaw discrimination based on “caste.”125 Its ambiguities are obviously sufficiently ample to cure any inadequacies of reference that may inhere in the other concepts.

The broad sweep of prohibited grounds in the Convention—whether its categorizations are taken separately or in the aggregate—would thus appear to afford protection to a vast variety of potential victims of (p. 590) discrimination. The complex of practices known as “anti-Semitism,”126 for example, though not mentioned in the Convention,127 might easily be outlawed under several of the Convention’s forbidden group categorizations.128

The inclusive, open-ended compass of the rights the Convention protects against discrimination is established both by broad generalization (p. 591) and by detailed, illustrative specification. Thus, in Article 1(1) “racial discrimination” is defined as acts which have “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.”129 This is followed in Article 5 by further broad generalization and a lengthy, minute itemization of protected rights, clearly intended to be illustrative, not exhaustive. The initial terms of Article 5 read:

In compliance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights. . . .130

The detailed itemization of protected rights offered by Article 5 begins by indicating that all persons have the right to challenge deprivations through appropriate tribunals and the “right to security of person”; then lists political rights in general and other civil rights in particular; continues with economic, social, and cultural rights; and concludes with the right of access to public accommodations and facilities.131 The right to challenge deprivations is recognized as fundamental to the effective realization of the norm of nondiscrimination; hence, “the right to equal treatment before the tribunals and all other organs administering justice” is accorded prominence.132 “The right to security of person” extends to “protection by the State against violence or bodily harm, whether inflicted by government officials or by an individual group or institution.”133 Political rights include the right to voting and officeholding “at any level,” elective and appointive, and “equal access to public service.”134 Other civil rights include the rights to “freedom of movement,” internal and transnational,135 to “nationality,”136 to “marriage and choice of spouse,”137 to “own property,”138 to “freedom of thought” and “expression,”139 and to “freedom of peaceful assembly and (p. 592) association.”140 “Economic, social and cultural rights” include the “right to work”; employment; “equal” and “just” remuneration;141 the right to “form and join trade unions”;142 and the rights to “housing,”143 health care and “social security,”144 “education and training,”145 and “equal participation in cultural activities.”146 Not being tied to any other particular human rights instrument, the Convention further enumerates “the right to inherit”147 and “the right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks,”148 two items ostensibly missing from the Universal Declaration of Human Rights.

That all this itemization in Article 5 is intended to be illustrative, not exhaustive, is abundantly demonstrated by the use in appropriate contexts of such terms as “notably,”149 “in particular,”150 and “such as.”151 The placing of “notably” in the opening paragraph, preceding any itemization, unequivocally expresses an intent for comprehensiveness in the human rights protected.152

It has been suggested that there might be “contradictions” between Article 1(1) and Article 5 on the grounds that while Article 1(1) employs the phrase “or any other field of public life” and omits a reference to “civil rights,”153 Article 5 “lists several rights which certainly do not come within the sphere of public life.”154 The wording “any other field of (p. 593) public life” in Article 1(I) would not appear to be used in any limiting or restrictive sense. “Public life,” an innovative-nontechnical term, would appear placed on the same general level as “the political, economic, social, cultural” fields so that together they might encompass all sectors of organized life of the community. The listing of many rights which would ordinarily be described as “private” in Article 5 is clear indication that “public life” in Article 1(1) is not used in contradistinction to “private” rights.155 The reference would appear rather as a generic summation of all rights protectable by law, designed to be all inclusive in reach. This interpretation is supported not only by the major purposes of the Convention, but also by the explicit rejection of a proposal to include in Article 1(1) the modifying clause, “set forth inter alia in the Universal Declaration of Human Rights,” as originally proposed in the Sub-Commission’s draft.156

At the eighth session of the Committee on the Elimination of Racial Discrimination in 1973, an attempt was made to undercut the broad reach of the rights protected by the Convention by factitious interpretation of Article 5.157 A member of the Committee158 suggested that Article 5 of the Convention did not establish any particular human rights, even those explicitly enumerated, but only a right to be free from racial discrimination and to equality before the law.159 “Its sole purpose,” he reasoned, “was to establish the obligation of states parties to ensure that there was no racial discrimination in the enjoyment of those human rights and to ‘guarantee the right of everyone . . . to equality before the law’ in the enjoyment of those rights.”160 He added:

Article 5 did not purport to be an international convention on civil, political, social, economic, cultural and other rights. Nor did it purport to virtually transform the Universal Declaration of Human Rights into an international convention, or to render the principles of that Declaration legally binding upon any State which ratified or acceded to the Convention.161

(p. 594) The notion that a right of nondiscrimination can be established without establishing the rights protected from discrimination is about as meaningful as the notion of minting a one-sided coin. The Convention on the Elimination of All Forms of Racial Discrimination is, of course, built upon the assumption that individuals already have a wide range of human rights which are protected by the Charter of the United Nations, by many ancillary authoritative instruments and expressions, and by that consensus of general community expectations commonly known as customary international law.162 This particular Convention is itself an important expression of this growing general community consensus; in this sense it clearly establishes the rights it purports to secure. Neither tied to, nor restricted by, any other particular human rights instrument,163 the Convention is designed, in the words of the preamble, to eliminate “racial discrimination in all its forms and manifestations”164 in relation to all human rights, established by whatever authority. The deliberate decision not to tie the Convention to other particular instruments, including even the much venerated Universal Declaration of Human Rights, represents a shared aspiration to make its protection as inclusive as possible of all rights, both present and prospective.165

The particular acts forbidden by the Convention are those which arbitrarily differentiate between individuals in the enjoyment of human rights. Article 1(1) makes the basic specification in terms of “any distinction, exclusion, restriction or preference . . . 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. . . .”166 It will be observed that this comprehensive formulation, expressed in the fourfold categories of “distinction, exclusion, restriction or preference,” seeks to catch every form of deprivation that may be imposed in social process.167 These four terms would appear to embrace (p. 595) both action and inaction and coercive indulgence as well as deprivation.168 Even attempts to discriminate appear to be included by the reference to “purpose” as an alternative to “effect.” This alternative reference to purpose and effect suggests that either alone is adequate to establish unlawful discrimination: mere purpose, without proof of success, may suffice, while effects, even in the absence of deliberate intent, are clearly forbidden. This broad reach is further strengthened by the prohibition even of incitement to discrimination. Thus, Article 4 condemns “all propaganda and all organizations” preaching the “superiority” of one race and promoting “racial hatred and discrimination” and seeks the eradication of “all incitement to, or acts of,” racial discrimination.169 In promotion of this end, the Article obliges contracting states to

declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;170

and, further, to

declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and [to] recognize participation in such organizations or activities as an offence punishable by law.171

Cognizant of the potentially intricate ramifications of such broad formulation, the Convention emphasizes at the same time that “due regard” be given to “the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention,”172 ostensibly with special reference to the rights of “freedom of opinion and expression” and “freedom of peaceful assembly and association.”173

(p. 596) The Convention’s broad formulation of forbidden acts is not, however, intended to prescribe that all differentiations are unlawful discriminations.174 The differentiations made impermissible are those which fail to establish a demonstrable, rational relation to individual potentialities for self-development and contribution to the aggregate common interest.175 This basic requirement of rationality, that is, an absence of arbitrariness, is implicit in the reference in Article 1(1) to the impairment of “human rights and fundamental freedoms” and is made explicit in Articles 1(4) and 2(2).176 Thus, these articles provide that (p. 597) appropriate measures of assistance to traditionally deprived groups undertaken for the purpose of achieving genuinely effective equality of opportunity and treatment for all members of the community do not come within the purview of the prohibition established.177

In its effort to secure the complete eradication of racial discrimination, the Convention brings both offical and nonofficial actors within its purview. The ban upon official discriminatory actions is extended to all levels of government. Thus, contracting states undertake, under Article 2(1)(a, b, and c),178 to

engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation . . . ; not to sponsor, defend or support racial discrimination by any persons or organizations . . . ; [and finally 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 wherever it exists.179

This prohibition on official actors is extended also to promotion or incitement of racial discrimination. Article 4(c) obliges contracting states not to “permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”180 In recognition that “racial (p. 598) discrimination is often private discrimination,”181 the Convention in one brief but important provision asserts a broad reach extending to private parties and associations. Article 2(I)(d) stipulates: “Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.”182 In rounding out its substantive prescriptions, the Convention provides for remedies against all actors, official and nonofficial alike. Article 6 reads:

States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.183

The comprehensive prohibition of discrimination on grounds of race contained within this Convention is fortified by many parallel expressions emanating from various United Nations bodies. It may be recalled that in the long train of resolutions regarding apartheid, adopted both by the General Assembly and by the Security Council, there has been a recurrent, emphatic, and equally general condemnation of racial discrimination as unlawful under international law.184 The continued exacerbation caused by racial discriminations led the General Assembly to proclaim the year 1971 as International Year for Action to Combat Racism and Racial Discrimination.185 The intensely aroused “conscience and sense of justice of mankind” for “the total and unconditional elimination of racial discrimination and racism”186 reached a climax with the General Assembly’s decision to launch “the Decade for Action to Combat Racism and Racial Discrimination,”187 inaugurating a wide range of concerted activities on December 10, 1973, the twenty-fifth anniversary of the Universal Declaration of Human Rights.188 In the Programme for the Decade for Action to Combat Racism and Racial (p. 599) Discrimination approved by the General Assembly on November 2, 1973, it is emphatically declared that

discrimination between human beings on the ground of race, colour or ethnic origin is an affront to humanity and shall be condemned as a violation of the principles of the Charter of the United Nations and 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 factor capable of disturbing peace and security among peoples.189

The crystallization of contemporary prescriptions against racial discrimination is further confirmed by the International Court of Justice in the Namibia case.190 One end result of the long and tortuous litigation on Namibia (South West Africa) was the unequivocal condemnation of racial discrimination by the International Court of Justice. In holding South Africa’s continued occupation of Namibia to be in violation of the Mandate and the Charter of the United Nations,191 the Court pronounced, in 1971, in language worth reiterating:

Under the Charter of the United Nations, the former Mandatory had pledged itself to observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction as to race. To establish instead, and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.192

This conclusion had been anticipated by the profound and eloquent dissenting opinion of Judge Tanaka in the South West Africa Cases (Second Phase)193 in 1966, a previous incarnation of the 1971 case. Drawing upon every source of international law authorized in the Statute of the International Court of Justice, Judge Tanaka concluded:

From what has been said above, we consider that the norm of non-discrimination or non-separation on the basis of race has become a rule of customary international law as is contended by the (p. 600) Applicants, and as a result, the Respondent’s obligations as Mandatory are governed by this legal norm in its capacity as a member of the United Nations. . . .194

On the regional level, comparable prescription can be found in the European Convention of Human Rights and the American Convention of Human Rights. The European Convention, in Article 14, provides:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.195

Similarly, the American Convention, in Article 1(1), obliges the contracting states to

undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.196

This growing consensus in transnational expectation against racial discrimination has been further fortified by the development of new “general principles of law” as expressed in national constitutions, statutes, and judicial decisions. As Judge Tanaka observed in his condemnation of racial discrimination in the South West Africa Cases (Second Phase) in 1966:

The principle of equality before the law, however, is stipulated in the list of human rights recognized by the municipal system of virtually every State no matter whether the form of government be republican or monarchical and in spite of any differences in the degree of precision of the relevant provisions. This principle has become an integral part of the constitutions of most of the civilized countries in the world. Common-law countries must be included.197

“There is a clear trend,” in the words of Santa Cruz, “to include constitutional provisions not only guaranteeing equality before the law but (p. 601) specifically providing against racial discrimination.”198 He further states:

Almost all the constitutions or basic laws of States contain provisions relating to human rights and fundamental freedoms, and a great majority of States have enacted legislation or taken other measures aimed at preventing or combating racial discrimination and achieving equal rights for all without distinction. A majority of constitutions promulgated in recent years contain provisions giving effect to the human rights and fundamental freedoms set out in the Universal Declaration on Human Rights.199

It may be noted that the national constitutions employ, in addition to the standard terms of race, color, descent, national origin, and ethnic origin, as illustrated in the Convention on the Elimination of Racial Discrimination,200 a wide range of other words to refer to prohibited grounds of differentiation, such as nationality,201 racial origin,202 origin,203 tribe,204 tribal affiliation,205 family,206 place of birth,207 social origin and position,208 place of origin,209 national and racial appurtenance,210 social extraction,211 kinship,212 and filiation.213

(p. 602) Special national legislation, in implementation of constitutional protections, has also been enacted to prevent and eradicate racial discrimination. For example, the United States has in recent years effectively resorted to a series of civil rights enactments, notably: the Civil Rights Act of 1964, outlawing racial discrimination in public accommodations and employment and strengthening federal power to enforce school integration;214 the Voting Rights Act of 1965 banning the use of literacy tests and related devices to deny the right to vote on account of race or color;215 and the Fair Housing Act of 1968 abolishing discrimination in residential housing.216 The enactment by the United Kingdom of the Race Relations Act of 1968,217 in the wake of the growing racial tension exacerbated by the inflow of “colored” immigrants, is another notable example.

The judicial processes of states have also played a role in creating transnational expectations. The tremendous changes propelled by the Supreme Court in the law of the United States have carried a message to many parts of the world. The clear trend of the Court’s decisions has been toward the elimination of racial discrimination in all its forms and manifestations.218 In its epochal decision in Brown v. Board of (p. 603) Education,219 the Court held that “in the field of education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”220 The impact of this decision has been felt not only in the educational sector,221 but also in many other sectors of community life. In the power sector, earlier decisions invalidating “the White Primary”222 have in recent years been fortified by a series of civil rights acts,223 especially the Voting Rights Act of 1965224 and the Voting Rights Act Amendments of 1970.225 The net effect of these statutes has been to secure effectively the equal right to vote and to stand for election by outlawing the employment of obstructive devices such as literacy tests or other registration obstacles.226 Their validity, though challenged, has been upheld by the Court.227 Building upon a far-reaching doctrine of “state action,”228 the Court has, further, proceeded to outlaw the (p. 604) separation of public facilities and accommodations (e.g., buses, parks, beaches and bathhouses, golf courses, auditoriums, courtroom seating, hotels, restaurants, and other places of entertainment),229 public housing,230 employment,231 and other areas of public concern.232 In 1967, the Court, in holding unconstitutional a Virginia statute barring interracial marriages in Loving v. Virginia,233 pronounced: “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.”234 In Jones v. Alfred H. Mayer Co.,235 the Court held that all racial discrimination, private as well as public, in the sale or rental of property is outlawed by the Civil Rights Act of 1866, a statute enacted in legitimate exercise of the congressional power to enforce the Thirteenth Amendment.236 “It (p. 605) may well be,” in the words of Larson, “that this decision, by infusing new vitality both into the early Reconstruction statutes and into the thirteenth amendment, will prove to be the most far-reaching race relations case since the Civil War.”237 Larson adds:

Jones, at one strike, supplied a broad fair housing law, and quite possibly an equally broad law banning discrimination in employment, professional services, private education, retail establishments, and service businesses of all sorts, by revitalizing the Reconstruction statutes on equal property and contract rights, as well as the thirteenth amendment abolishing slavery.238

In establishing structures and procedures for the application of the newly emerged basic prescription against racial discrimination, the general community has moved significantly toward more highly specialized and increasingly centralized structures and procedures. The most general goal sought in application is of course that of minimizing to the utmost degree possible the occurrence of racial discrimination. Yet, it is widely recognized that, because of the complexity residing in both the practices of racial discrimination and their causes, the broad goal of minimization must be made more specific in terms of a whole series of interrelated subgoals.239 These subgoals may be summarized as follows: (1) prevention, from a long-range perspective, of the occurrence of racial discrimination by fostering appropriate predispositions in people; (2) deterrence, at the incipient stage, of attempts to engage in racial discrimination; (3) restoration, with promptness, of exacerbated situations when disruption has been caused by discriminatory acts; (4) rehabilitation of victims of discriminatory situations by affording appropriate remedies and compensations; (5) reconstruction, in a concerted long-term effort, of (p. 606) the whole social environment, including the special measures necessary to ameliorate accumulated grievances and to promote the self-development of all community members; and (6) correction of offenders by invoking the community process of criminal sanction.240

Toward these ends, the Convention on the Elimination of Racial Discrimination, in recognition of the highly decentralized structure of world effective power, thrusts upon individual states the primary responsibility for achieving the major goal of minimization of racial discrimination by relating concrete undertakings to these subgoals. To secure the long-term goal of prevention, the Convention, in Article 7, stipulates:

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.241

To deter the consummation of immediately threatened discriminatory acts, the Convention, in Article 4, bans not only racist propaganda and organizations but also incitement to racial discrimination.242 To restore the exacerbated situations caused by past discriminations, the Convention, in Article 6, requires contracting states to “assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions.”243 For the purpose of rehabilitation, the Convention, again in Article 6, requires contracting states to afford victims “just and adequate reparation or satisfaction for any damage suffered. . . .”244 For measures directed toward long-range reconstruction, the Convention stresses the importance of undertaking special programs to assist traditionally deprived groups,245 a move vital to the attainment of genuinely effective equality (p. 607) of opportunity, and urges a continuing effort of enlightenment to change people’s predispositions,246 a task essential to the subgoal of reconstruction as well as to that of broader prevention.247 The Convention, in Article 2(1)(e), further states: “Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.”248 And finally, the Convention, in seeking the subgoal of correction, obliges contracting states to make certain acts criminal offenses, including dissemination of racist ideas, incitement to racial discrimination, acts of racial violence, rendering assistance to racist activities, and participation in racist organizations and activities.249

To supervise the degree of compliance by contracting states, the Convention on Racial Discrimination established the Committee on the Elimination of Racial Discrimination, consisting of “eighteen experts of high moral standing and acknowledged impartiality” serving “in their personal capacity.”250 The competence conferred upon the Committee is fourfold:

  1. 1.  To appraise, under Article 9, reports on “the legislative, judicial, administrative or other measures” of compliance submitted by contracting states and thus to “make suggestions and general recommendations”;251

  2. 2.  To act, pursuant to Articles 11 and 13, on complaints brought by one State Party against another for failing to give effect to the provisions of the Convention;252

  3. 3.  To deal with petitions by individuals under the conditions specified in Article 14;253

  4. 4.  To cooperate, pursuant to Article 15, with competent United Nations bodies regarding petitions from the inhabitants of trust, non-self-governing, and other dependent territories.254

The reporting system is a feature characteristic of most of the transnational (p. 608) human rights instruments.255 Under Article 9 of the Convention, each state party is required, except initially, to submit a biannual report, and the Committee may request further information if necessary.256 The Committee’s annual report to the General Assembly not only relays information about its activities, but may also contain both general and specific recommendations.257 The importance of the reporting system has been underscored by Reisman in these words:

This Committee function of appraisal and recommendation should not be underestimated. If it is carried forward impartially, a total public picture of trends in regard to the elimination of racial discrimination will be available. Trouble spots will be highlighted and publicized and priorities and tactics for action can be determined by official and private international organizations operating beyond the formal confines of the Committee. The threat of international exposure may stimulate some states to take more active measures to combat racial discrimination.258

Under the interstate complaint procedure provided in Articles 11 through 13, any state party may bring an alleged violation of the Convention by another party to the attention of the Committee.259 The complaint (“communication”) will be transmitted to the state party concerned, which then has three months to “submit to the Committee written explanations or statements clarifying the matter.”260 “If the matter is not adjusted to the satisfaction of both parties,” either party has the right to “refer the matter again to the Committee”;261 the Committee is authorized to deal with the matter upon ascertaining that the requirements of exhaustion of “domestic remedies” are met.262 “After the Committee has (p. 609) obtained and collated all the information it deems necessary,” according to Article 12(1)(a), it is incumbent upon the Committee chairman to appoint an ad hoc conciliation commission, “comprising five persons who may or may not be members of the Committee”263 but who are in principle “appointed with the unanimous consent of the parties to the dispute.”264 The Commission is to make available its “good offices” to the disputing parties in search of “an amicable solution” on the basis of “respect” for the Convention.265 Failing an agreed settlement, the Commission is required to “prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute.”266 This report, together with the “declarations of the States Parties concerned”267 signifying their acceptance or rejection of the report’s recommendations, is to be made available to all the other contracting states after a specified period.268

The right of individual petition is made subject to the option of states under the Convention. “A State Party may,” under Article 14(1), “at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention.”269 The same provision, however, immediately adds: “No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.”270 Furthermore, the competence of the Committee regarding individual petitions is operative “only when at least ten States Parties” have made the requisite declarations of acceptance.271 The Committee, guided by a set of somewhat complicated (p. 610) procedures for handling such petitions,272 especially the exhaustion of domestic remedies,273 may engage in fact-finding and formulate “its suggestions and recommendations.”274 The Committee is required, under Article 14(8), to “include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements of the States Parties concerned and of its own suggestions and recommendations.”275 To accord individual victims competence to invoke the prescriptions of the Convention before the Committee is indeed an immensely significant step, though achievement of the requisite number of acceptances (at least ten) seems to be delayed.276

Unlike Article 14(1) in the restriction it imposes on individual petitions,277 Article 15(2)(a) authorizes the Committee to

receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of this Convention in their consideration of petitions from the inhabitants of Trust and Non-Self-Governing Territories and all other territories to which General Assembly resolution 1514(XV) applies, relating to matters covered by this Convention which are before these bodies.278

This sharp contrast has provoked a commentator to call it another manifestation of “the UN’s double standard on human rights complaints.”279

During the first four years (1970–73) of its operation, the Committee on the Elimination of Racial Discrimination concerned itself mainly with (p. 611) appraising reports submitted by the contracting states and making general recommendations,280 and considering, pursuant to Article 15, petitions submitted by the inhabitants of various dependent territories,281 in addition to making necessary organizational arrangements, notably its own rules of procedure.282 The Committee was not seized of any formal interstate complaint under Article 11.283 The procedure for individual petitions contemplated in Article 14 is yet to be set in operation, because only seven of the one hundred state parties have made the requisite declaration.284

Footnotes:

1  See notes 113–28 infra and accompanying text.

2  A. Montagu, Man’s Most Dangerous Myth: The Fallacy of Race (5th ed. rev. 1974).

3  For a fascinating and detailed description of the physical differences among various human groups see J. Baker, Race 179–417 (1974). See also C. Coon, The Living Races of Man (1965); C. Coon, The Origin of Races (1962).

4  A. Montagu, Statement on Race 8 (3d ed. 1972) [hereinafter cited as A. Montagu]. The Statement was prepared by a panel of distinguished scientists, representing various disciplines and regions, under the auspices of UNESCO. See id. at 13 for the names of these distinguished scholars. Three additional statements concerning race were subsequently issued by UNESCO: Statement on the Nature of Race and Race Differences, June 1951, id. at 137–47; Proposals on the Biological Aspects of Race, Aug. 1964, id. at 148–55; and Statement on Race and Racial Prejudice, Sept. 1967, id. at 156–64.

5  A. Montagu, supra note 4, at 8. Additional complications are generated by the imprecision with which these generic terms are used.

The layman’s conception of “race” is so confused and emotionally muddled that any attempt to modify it would seem to be met by the greatest obstacle of all, the term “race” itself. This is another reason why the attempt to retain the term “race” in popular parlance must fail. The term is a trigger word: utter it and a whole series of emotionally conditioned responses follow.

Id. at 65.

Hence the proposal to substitute the term “ethnic group” for “race.” See id. at 59–71. Cf. C. Putnam, Race and Reality. (1967); P. Rose, The Subject Is Race (1968), which deals with “traditional ideologies and the teaching of race relations.”

6  See generally A. Alland, Human Diversity (1971); T. Dobzhansky, Mankind Evolving: The Evolution of the Human Species (1962) [hereinafter cited as T. Dobzhansky]; S. Garn, Human Races (3d ed. 1971); Readings on Races (2d ed. S. Garn 1968); R. Goldsby, Race and Races (1971); J. King, The Biology of Race (1971); M. Klass & H. Hellman, The Kinds of Mankind (1971); The Concept of Race (A. Montagu ed. 1964); Race: Individual and Collective Behavior (E. Thompson & E. Hughes eds. 1958); UNESCO, Race and Science (1969).

7  Osborne, The History and Nature of Race Classification, in The Biological and Social Meaning of Race 159, 164 (R. Osborne ed. 1971). Similarly, the 1950 UNESCO statement on race, in identifying “race” as “one of the group of populations [capable of interbreeding] constituting the species Homo sapiens,” further defines it as “a group or population characterized by some concentrations relative as to frequency and distribution, of hereditary particles (genes) or physical characteristics, which appear, fluctuate, and often disappear in the course of time by reason of geographical and/or cultural isolation.” A. Montagu, supra note 4, at 7–8, 36, 40–41, 46. Mankind as a whole constitutes a single biological species which is a “genetically closed system,” whereas all races, whatever the usage of the word race, are “genetically open systems.” T. Dobzhansky, supra note 6, at 183.

8  T. Dobzhansky, Genetic Diversity and Human Equality 57 (1973).

9  Id.

10  Id. at 67.

11  Id. at 59.

12  Osborne, The History and Nature of Race Classification, in The Biological and Social Meaning of Race 159, 161 (R. Osborne ed. 1971).

13  Id. at 164.

14  Scott, Discussion, in Science and the Concept of Race 59 (M. Mead, T. Dobzhansky, E. Tobach, & R. Light eds. 1968). In the words of Clyde Kluckhohn, a well-known anthropologist: “Though the concept of race is genuine enough, there is perhaps no field of science in which the misunderstandings among educated people are so frequent and so serious.” G. Allport, The Nature of Prejudice 106 (1958) (quoting Kluckhohn).

The vagueness of “race,” it may be observed, is attributable principally to two reasons: (1) the vagueness written into the scientific definition, and (2) the bewildering diversity in the use of the word that ignores any scientific usage.

15  Some of these words are borrowed from Henkin, National and International Perspectives in Racial Discrimination, 4 Human Rights J. 263 (1971).

As Judge Ammoun, vice-president of the International Court of Justice, observed in his Separate Opinion in the Namibia case of 1971:

The violation of human rights has not come to an end in any part of the world: to realize that fact one need only consult the archives of the European Court of Human Rights, the Human Rights Commission of the United Nations or the International Commission of Jurists, or simply read the world press. Violations of personal freedom and human dignity, the racial, social or religious discrimination which constitutes the most serious of violations of human rights since it annihilates the two-fold basis provided by equality and liberty, all still resist the currents of liberation in each of the five continents. Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] I.C.J. 75–76 [hereinafter cited as ICJ Advisory Opinion on Namibia].

One of the outstanding features of the contemporary world is the revival of biological traits as pseudo-biological identity symbols. In the prophetic words of Du Bois: “[T]he problem of the twentieth century is the problem of the colour line—the relation of the darker to the lighter races of men in Asia and Africa, in America and in the Islands of the sea.” W. Du Bois, The Souls of Black Folk 13 (2d ed. 1903).

Similarly, Connor has given the following statistics:

Of a total of 132 contemporary states, only 12 (9.1 percent) can be described as essentially homogeneous from an ethnic viewpoint. An additional 25 states (18.9 per cent of the sample) contain an ethnic group accounting for more than 90 per cent of the state’s total population, and in still another 25 states the largest element accounts for between 75 and 89 per cent of the population. But in 31 states (23.5 per cent of the total), the largest ethnic element represents only 50 to 74 per cent of the population, and in 39 cases (29.5 per cent of all states) the largest group fails to account for even half of the state’s population. Moreover, this portrait of ethnic diversity becomes more vivid when the number of distinct ethnic groups within states is considered. In some instances, the number of groups within a state runs into the hundreds, and in 53 states (40.2 per cent of the total), the population is divided into more than five significant groups.

Connor, Nation-Building or Nation-Destroying? 24 World Politics 319, 320 (1972) (footnote omitted).

16  On the atrocities associated with the racist policies of the Nazis see American Jewish Conference, Nazi Germany’s War against the Jews (1947); H. Arendt, The Origins of Totalitarianism (2d ed. 1958); The Third Reich (M. Beaumont, J. Fried, & E. Vermeil eds. 1955); R. Hilberg, The Destruction of the European Jews (1961) [hereinafter cited as R. Hilberg]; O. Janowsky & M. Fagen, International Aspects of German Racial Policies (1937) [hereinafter cited as O. Janowsky & M. Fagen]; M. Lowenthal, The Jews of Germany (1936); Nazi Conspiracy and Aggression, Opinion and Judgment (U.S. Gov’t Printing Office 1947); H. Santa Cruz, Racial Discrimination, U.N. Doc. E/CN.4/Sub. 2/307/Rev. 1 (1971).

17  This fourfold classification is as follows: white persons (Europeans); Bantus (Africans); coloured persons; and Asians. For a discussion of the wide range of severe value deprivations associated with racial discrimination in the context of apartheid see chapter 7 supra, at notes 392–434 and accompanying text.

18  See R. Hilberg, supra note 16, at 118–21, for a discussion of the identification system used by Nazi Germany. “The whole identification system,” in the words of Hilberg, “with its personal documents, specially assigned names, and conspicuous tagging in public, was a powerful weapon in the hands of the police,” facilitating the enforcement of residence and movement restrictions, generating arbitrary arrests of non-Aryans, and causing “a paralyzing effect on its victims.” Id. at 121.

19  Cf. J. Greenberg, Race Relations and American Law 79–114 (1959) [hereinafter cited as J. Greenberg]; 2 G. Myrdal, An American Dilemma (1964); C. Woodward, The Strange Career of Jim Crow (2d ed. rev. 1966); Franklin, History of Racial Segregation in the United States, 34 Annals 1 (1956).

Note the vivid description by Woodward:

The public symbols and constant reminders of his [the Negro’s] inferior position were the segregation statutes, or “Jim Crow” laws. They constituted the most elaborate and formal expression of sovereign white opinion upon the subject. In bulk and detail as well as in effectiveness of enforcement the segregation codes were comparable with the black codes of the old regime, though the laxity that mitigated the harshness of the black codes was replaced by a rigidity that was more typical of the segregation code. That code lent the sanction of law to a racial ostracism that extended to churches and schools, to housing and jobs, to eating and drinking. Whether by law or by custom, that ostracism extended to virtually all forms of public transportation, to sports and recreations, to hospitals, orphanages, prisons, and asylums, and ultimately to funeral homes, morgues, and cemeteries.

C. Woodward, supra at 7 (footnote omitted).

20  According to a study prepared by the United States Commission on Civil Rights, the various devices employed to disfranchise the blacks in ten southern states of the United States include the following: “diluting the Negro vote,” “preventing Negroes from becoming candidates or obtaining office,” “discrimination against Negro registrants,” “exclusion or an interference with Negro poll watchers,” “vote fraud,” “discriminatory selection of election officials,” and “intimidation and economic dependence.” United States Comm’n on Civil Rights, Political Participation 19–131 (1968). See also J. Greenberg, supra note 19, at 133–53; L. Litwack, North of Slavery 74–79 (1961), Comment, Representative Government and Equal Protection, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 472 (1970).

21  See, e.g., O. Janowsky & M. Fagen, supra note 16, at 134–35, 146–54; United States Comm’n on Civil Rights, Political Participation 40–59 (1968).

22  See O. Janowsky & M. Fagen, supra note 16, at 60–72, 134–35, 142–45; the appendix infra, at notes 193–203 and accompanying text.

23  See R. Hilberg, supra note 16, at 137–44; O. Janowsky & M. Fagen, supra note 16, at 49–60.

24  See J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave Any Country, Including His Own, and to Return to His Country 20–23, U.N. Doc. E/CN.4/Sub. 2/220/Rev. 1 (1963).

25  A notorious example was, of course, the essentially whites-only immigration policy in Australia. Other examples include discriminatory policies toward “coloured” immigrants in the United Kingdom and the national quota system used in the United States prior to 1965. See generally M. Banton, Race Relations 368–93 (1967); P. Foot, Immigration and Race in British Politics (1965); I. MacDonald, Race Relations and Immigration Law (1969); S. Patterson, Immigration and Race Relations in Britain 1960–1967 (1969); E. Rose, Colour and Citizenship (1969); Patterson, Immigrants and Minority Groups in British Society, in The Prevention of Racial Discrimination in Britain 21 (S. Abbott ed. 1971).

See also Higham, American Immigration Policy in Historical Perspective, 21 Law & Contemp. Prob. 213 (1956); Jaffe, The Philosophy of Our Immigration Law, 21 Law & Contemp. Prob. 358 (1956); Scully, Is the Door Open Again?—A Survey of Our New Immigration Law, 13 U.C.L.A.L. Rev. 227 (1966).

26  See H. Santa Cruz, supra note 16, at 255.

27  Cf. id. at 256–57; National Advisory Comm’n on Civil Disorders, Report 299–336 (Bantam ed. 1968).

28  See O. Janowsky & M. Fagen, supra note 16, at 192–96; H. Santa Cruz, supra note 16, at 260–63; United States Comm’n on Civil Rights, Justice (1961).

29  For instance, the Nazi Conscription Law provided that “Aryan descent is a pre-supposition for active military service.” O. Janowsky & M. Fagen, supra note 16, at 154.

Instead of being denied access to military training and service, blacks in the United States have in recent years complained that there have been proportionately too many blacks in the combat forces, especially when the United States was engaged in the Vietnam conflict. See Lee, The Draft and the Negro, in White Racism 341 (B. Schwartz & R. Disch eds. 1970).

30  See C. Ammoun, Study of Discrimination in Education 10–28, U.N. Doc. E/CN.4/Sub. 2/181/Rev. 1 (1957); United Nations, Economic and Social Consequences of Racial Discriminatory Practices, U.N. Doc. E/CN.14/132/Rev. 1 at 69–72 (1963) [hereinafter cited as Economic and Social Consequences]; L. Litwack, North of Slavery 113–17, 120–21 (1961).

31  See Economic and Social Consequences, supra note 30, at 69–72; O. Janowsky & M. Fagen, supra note 16, at 175–77.

32  O. Janowsky & M. Fagen, supra note 16, at 158–61.

33  Cf. W. Korey, The Soviet Cage: Anti-Semitism in Russia 52 (1973); G. Simpson & J. Yinger, Racial and Cultural Minorities 454–57 (3d ed. 1965); Braverman, Medical School Quotas, in Barriers: Patterns of Discrimination against Jews 74–77 (N. Belth ed. 1958).

34  Cf. J. Coleman, Equality of Educational Opportunity (1966); J. Greenberg, supra note 19, at 208–74; C. Jencks, Inequality: A Reassessment of the Effect of Family and Schooling in America (1972); G. Simpson & J. Yinger, Racial and Cultural Minorities 413–62 (3d ed. 1965).

35  R. Hilberg, supra note 16, at 650–53.

36  International Labour Office, Fighting Discrimination in Employment and Occupation 52–59 (1968).

37  See, e.g., O. Janowsky & M. Fagen supra note 16, at 135, 155–58, 174–75.

38  See, e.g., id. at 160, 177–78.

39  39, See Economic and Social Consequences, supra note 30, at 48–61.

40  See generally B. Hepple, Race, Jobs and the Law in Great Britain 180–226 (1972); Employment, Race and Poverty (A. Ross & H. Hill eds. 1967); M. Sovern, Legal Restraints on Racial Discrimination in Employment (1966); Hepple, Employment, in The Prevention of Racial Discrimination in Britain 155–74 (S. Abbott ed. 1971); Jowell & Prescott-Clarke, Racial Discrimination and White-Collar Workers in Britain, in id. at 175–93.

41  H. Santa Cruz, supra note 16, at 174, 218, 230.

42  Cf. United Nations and International Labour Office, Report of the Ad Hoc Committee on Forced Labour 3–127, U.N. Doc. E/2431 (1953).

43  See R. Hilberg, supra note 16, at 54–101, 156–68.

44  The most notorious example is, of course, the extermination of six million Jews under the Third Reich. For a detailed description of this destruction process see id. at 177–256, 555–635. More recent examples of massive extermination including the killing of Ibos in the Biafra conflict, the killing of Chinese in Indonesia, and the killing of Bengals by the Pakistanis.

45  Id. at 101–74; H. Santa Cruz, supra note 16, at 257–60; National Advisory Comm’n on Civil Disorders, Report 269–73 (Bantam ed. 1968). In Nazi Germany, for example, the government policy was to concentrate Jews in ghettos and subject them to severe food rationing, whereby many individuals died of starvation.

46  H. Santa Cruz, supra note 16, at 258.

Note, for instance, this brief account of the Nazis:

The inmates were subjected to cruel experiments at Dachau in August 1942; victims were immersed in cold water until their body temperature was reduced to 28°C, when they died immediately. Other experiments included high altitude experiments in pressure chambers, experiments with how long human beings could survive in freezing water, experiments with poison bullets, experiments with contagious diseases, and experiments dealing with sterilization of men and women by X-rays and other methods.

Nazi Conspiracy and Aggression, Opinion and Judgment 81–82 (1947), quoted in H. Santa Cruz, supra note 16, at 258.

47  National Advisory Comm’n on Civil Disorders, Report 270–71 (Bantam ed. 1968).

48  For a profile of the formation of racial ghettos see id. at 236–47. See also R. Hilberg, supra note 16, at 106–25; 2 G. Myrdal, An American Dilemma 618–27 (1964).

49  See R. Sickels, Race, Marriage and the Law 10–91 (1972). See also O. Janowsky & M. Fagen, supra note 16, at 196–99.

50  See O. Janowsky & M. Fagen, supra note 16, at 199–200.

51  See, e.g., id. at 199–201.

52  The destruction of synagogues by the Nazis is a notorious example. R. Hilberg, supra note 16, at 5.

53  An inquiry into the causes of these multiple deprivations would require an extensive scientific treatise. It is simplistic to suggest that most racial discriminations are caused by prejudices, since the concept of prejudice is ill-defined and leaves open the question: what is the cause of prejudice? See generally G. Allport, supra note 14; A. Burns, Colour Prejudice (1948); D. Cante, Frantz Fanon (1970); F. Fanon, Black Skin, White Masks (1967); F. Fanon, The Wretched of the Earth (1965); United Nations, The Main Types and Causes of Discrimination, U.N. Doc. E/CN.4/Sub. 2/40/Rev. 1 (1949) (memorandum submitted by the secretary-general); G. Simpson & J. Yinger, Racial and Cultural Minorities (3d ed. 1965); Schachter, How Effective Are Measures against Racial Discrimination? 4 Human Rights J. 293 (1971).

For the importance of race in world affairs see Race among Nations: A Conceptual Approach (G. Shepherd & T. LeMelle eds. 1970).

Any serious investigation of the causes of racial discrimination would require a comprehensive exploration of both predispositional and environmental factors. The root causes of destructive impulses which find expression in discrimination are traceable through the whole process through which people are socialized and involve varying combinations of demands, identification, and expectations. The environmental variables are as multifaceted as the many differing features of man’s social process in exploitation of the vast complex of global resources.

54  See chapter 6 supra, at notes 19, 40–44 and accompanying text.

55  For the extreme view of Count Arthur de Gobineau, which “surpasses in scope and sinister grandeur even the pages of Mein Kampf,” see M. Biddis, Father of Racist Ideology: The Social and Political Thought of Count Gobineau (1970). In emphasizing the superiority of the Aryans, Gobineau asserted:

Everything great, noble and fruitful in the works of man on this earth, in science, art and civilization, derives from a single starting point, is the development of a single germ and the result of a single thought; it belongs to one family alone, the different branches of which have reigned in all the civilized countries of the universe.

Id. at 113.

For a convenient summary see Klineberg, Racialism in Nazi Germany, in The Third Reich at 852–63 (M. Beaumont, J. Fried, & E. Vermeil eds. 1955). Note also the following statement by Hermann Gauch:

The non-Nordic man occupies an intermediate position between the Nordics and the animals, just about next to the anthropoid ape. He is therefore not a complete man. He is really not a man at all in true contradistinction to animals, but a transition, an intermediate stage. Better and more apt, therefore, is the designation “subhuman” (Untermensch).

Id. at 859 (quoting Gauch).

For historical accounts of racist ideology see H. Arendt, The Organs of Totalitarianism 158–84 (2d ed. 1958); F. Hertz, Race and Civilization (1928).

56  G. Allport, supra note 13, at 107–08. “An imaginative person,” he adds, “can twist the concept of race any way he wishes, and cause it to configurate and ‘explain’ his prejudices.” Id. at 108.

57  Osborne, The History and Nature of Race Classification, in The Biological and Social Meaning of Race 161 (R. Osborne ed. 1971).

58  Dobzhansky, Biological Evolution and Human Equality, in Science and the Modern World 15, 28 (J. Steinhardt ed. 1966).

59  J. Baker, Race 534 (1974).

60  Dobzhansky, Biological Evolution and Human Equality in Science and the Modern World 15, 27 (J. Steinhardt ed. 1966). On the continuing debate of heredity versus environment (nature or nurture) see B. Bloom, Stability and Change in Human Characteristics (1964); J. Crow & M. Kimura, An Introduction to Population Genetics Theory (1970); T. Dobzhansky, Genetics of the Evolutionary Process (1970); T. Dobzhansky, supra note 6, at 51–75; R. Herrnstein, I.Q. in the Meritocracy (1973); C. Jencks, Inequality: A Reassessment of the Effect of Family and Schooling in America 64–84 (1972); A. Jensen, Genetics and Education (1972); Darlington, Race, Class and Culture, in Biology and the Human Sciences 95 (J. Pringle ed. 1972); Jensen, How Much Can We Boost IQ and Scientific Achievement? 39 Harv. Educational Rev. 1 (1969); Jensen, Reducing the Heredity-Environment Uncertainty: A Reply, 39 Harv. Educational Rev. 449 (1969); Shockley, Models, Mathematics, and the Moral Obligation to Diagnose the Origin of Negro IQ Deficits, 41 Rev. Educational Research 369 (1971).

61  A. Montagu, Man’s Most Dangerous Myth: The Fallacy of Race xiii (5th ed. rev. 1974). Speaking of “the man of flesh and bone,” instead of “political man, social man, man in the abstract,” René Dubos has observed:

All human beings are related, biologically and mentally, but no two of them have exactly the same biological and mental constitution. Furthermore, the individuality of any person living now is different from that of anyone who has ever lived in the past or will live in the future. Each person is unique, unprecedented, and unrepeatable.

Dubos, Biological Determinants of Individuality, in Individuality and the New Society 148 (A. Kaplan ed. 1970).

62  C. Darwin, The Descent of Man, and Selection in Relation to Sex 178 (1st Ams ed. 1972).

63  Id. at 122.

64  Dobzhansky, Biological Evolution and Human Equality, in Science and the Modern World 15, 33 (J. Steinhardt ed. 1966).

65  Id.

66  H. Lauterpacht, An International Bill of the Rights of Man 47 (1945); H. Lauterpacht, International Law and Human Rights 68 (1950) [hereinafter cited as H. Lauterpacht, International Law].

67  See M. Ganji, International Protection of Human Rights 17–43 (1962). On humanitarian intervention see I. Brownlie, International Law and the Use of Force by States 338–42 (1963); Humanitarian Intervention and the United Nations (R. Lillich ed. 1973); L. Sohn & T. Buergenthal, International Protection of Human Rights 137–211 (1973) [hereinafter cited as L. Sohn & T. Buergenthal]; Bowett, The Use of Force in the Protection of Nationals, 43 Grotius Soc’y 111 (1957); Cabranes, Human Rights and Non-Intervention in the Inter-American System, 65 Mich. L. Rev. 1147 (1967); Claydon, Humanitarian Intervention and International Law, 1 Queen’s Intramural L.J. 36 (1969); Franck & Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military Force, 67 Am. J. Int’l L. 275 (1973); Lillich, Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325 (1967); Lillich, Intervention to Protect Human Rights, 15 McGill L.J. 205 (1969); Stowell, Humanitarian Intervention, 33 Am. J. Int’l L. 733 (1939); Wiseberg, Humanitarian Intervention: Lessons from the Nigerian Civil War, 7 Human Rights J. 61 (1974).

68  M. Ganji, International Protection of Human Rights 22–24 (1962); H. Lauterpacht, International Law, supra note 66, at 120.

69  See L. Sohn & T. Buergenthal, supra note 67, at 181–94.

70  We propose to deal with the question of minority protection in a later study. For pertinent references, see chapter 4 supra, at note 57.

71  These treaty stipulations were conveniently compiled in League of Nations, Protection of Linguistic, Racial and Religious Minorities by the League of Nations: Provisions Contained in the Various International Instruments at Present in Force, 1927, I.B.2.

72  Id. at 43 (The Treaty with Poland, Art. 2). The treaty with Poland served as the model for other comparable treaties. See also id. at 8 (The Peace Treaty with Austria, Art. 63); id. at 11 (The Peace Treaty with Bulgaria, Art. 50); id. at 22 (The Treaty with Greece, Art. 2); id. at 29 (The Peace Treaty with Hungary, Art. 55); id. at 51 (The Treaty with Roumania, Art. 2); id. at 61 (The Treaty with the Serb-Croat-Slovene State, Art. 2); id. at 92 (The Treaty with Czechoslovakia, Art. 2); id. at 97 (The Peace Treaty with Turkey, Art. 38).

73  Id. at 4 (The Declaration Made by Albania before the Council of the League of Nations on October 2, 1921, Art. 2); id. at 14 (Estonia); id. at 32 (Latvia); id. at 34 (Declaration of Lithuania, dated May 12, 1922, Art. 2).

74  See, e.g., The Treaty with Poland, Art. 12, id. at 44.

75  Id.

76  Id. at 45.

77  Art. 13(1)(b) of the U.N. Charter reads:

  1. 1.  The General Assembly shall initiate studies and make recommendations for the purpose of:

    • . . .

    1. b.  promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

U.N. Charter, Art. 13(1)(b).

78  Art. 55(c) reads:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

  • . . .

  1. c.  universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to rate, sex, language, or religion.

Id. Art. 55(c).

79  Art. 76(c) reads:

The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be:

  • . . .

  1. c.  to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world.

Id. Art. 76(c).

80  Universal Declaration of Human Rights, adopted Dec. 10, 1948, Art. 2, G.A. Res. 217, U.N. Doc. A/810 at 72 (italics added).

81  Id., Art. 7, U.N. Doc. A/810 at 73.

82  Convention concerning Discrimination in Respect of Employment and Occupation, adopted June 25, 1958, Art. 2, 362 U.N.T.S. 34 (ILO General Conference) (entered into force June 15, 1960).

83  Id., Art. 1(1)(a), 362 U.N.T.S. at 32 (italics added).

84  Convention against Discrimination in Education, adopted Dec. 14, 1960, Preamble, 429 U.N.T.S. 94 (UNESCO General Conference) (entered into force May 22, 1962).

85  Id., Art. 1(1), 429 U.N.T.S. at 96 (italics added).

86  International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, Art. 2(1), G.A. Res. 2200A, 21 U.N. GAOR, Supp. (No. 16) 53, U.N. Doc. A/6316 (1966) (italics added).

87  Id., Art. 26, 21 U.N. GAOR, Supp. (No. 16) 55–56 (italics added).

88  It reads:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

International Covenant on Economic, Social, and Cultural Rights, adopted Dec. 16, 1966, Art. 2(2), G.A. Res. 2200A, 21 U.N. GAOR, Supp. (No. 16) 49–50, U.N. Doc. A/6316 (1966).

89  United Nations Declaration on the Elimination of All Forms of Racial Discrimination, adopted Nov. 20, 1963, G.A. Res. 1904, 18 U.N. GAOR, Supp. (No. 15) 35, 36, U.N. Doc. A/5515 (1963) [hereinafter cited as Declaration on the Elimination of All Forms of Racial Discrimination].

90  International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter cited as Convention on the Elimination of All Forms of Racial Discrimination].

91  Schwelb, The International Convention on the Elimination of All Forms of Racial Discrimination, 15 Int’l & Comp. L.Q. 996, 997 (1966) [hereinafter cited as Schwelb]. See also Deutsch, The 1960 Swastika-Smearings: Analysis of the Apprehended Youth, Merrill-Palmer Q. of Behavior & Dev. 1 (Apr. 1962), reprinted in Minority Problems 341 (A. Rose & C. Rose eds. 1965); Moskowitz, The Narrowing Horizons of United Nations Concern with Racial Discrimination, 4 Human Rights J. 278, 282–83 (1971) [hereinafter cited as Moskowitz].

92  Humphrey, The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, 62 Am. J. Int’l L. 869, 882 (1968).

93  Report of the Twelfth Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights 58, U.N. Doc. E/CN.4/800 (E/CN.4/Sub. 2/206) (1960).

94  Report of the Thirteenth Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights 60, 63, U.N. Doc. E/CN.4/815 (E/CN.4/Sub. 2/211) (1961).

95  G.A. Res. 1780, 17 U.N. GAOR, Supp. (No. 17) 32, U.N. Doc. A/5217 (1962); G.A. Res. 1781, id. at 33. It has been sharply pointed out that the decision to have two separate sets of instruments was motivated by politics rather than merits. Schwelb, supra note 91, at 999.

By drawing a line of demarcation separating discrimination on religious grounds from discrimination on racial and ethnic grounds, the United Nations departed radically from well-established and widely-accepted norms which recognize that, apart from certain obvious cases, racial discrimination was usually brought about not solely by differences in race or colour, but also by cultural, religious and other differences which led to mistrust and prejudice.

Moskowitz, supra note 91, at 282.

96  Schwelb, supra note 91, at 999.

97  See, id.; Moskowitz, supra note 91, at 282–84.

98  Declaration on the Elimination of All Forms of Racial Discrimination, supra note 89.

99  Report of the Sixteenth Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights 13–57, U.N. Doc. E/CN.4/873 (E/CN.4/Sub. 2/241) (1964).

100  Report on the Twentieth Session, Commission on Human Rights, 37 U.N. ECOSOC Supp. (No. 8) 9, U.N. Doc. E/3873 (E/CN.4/874) (1964).

101  Report of the Third Committee, Draft International Convention on the Elimination of All Forms of Racial Discrimination, 20 U.N. GAOR, Annexes (Agenda Item 58) 13, U.N. Doc. A/6181 (1965). For a verbatim record of the Third Committee’s discussions see 20 U.N. GAOR, 3d Comm. 57–141, 147–52, 313–400, 419–66, 495–509 (1965).

102  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90.

103  See chapter 11 infra.

104  Declaration on the Elimination of All Forms of Racial Discrimination, supra note 89, Preamble, 18 U.N. GAOR, Supp. (No. 15) 36.

105  Id., Art. 1.

106  Id., Arts. 2(1–2).

107  Id., Art. 3(1).

108  Id., Art. 3(2).

109  Id., Art. 9(1), (2), 18 U.N. GAOR, Supp. (No. 15) 37.

110  Id., Art. 9(3).

111  Id., Art. 4, 18 U.N. GAOR, Supp. (No. 15) 36.

112  Schwelb, supra note 91, at 1057.

113  Art. 1(1) of the Convention reads:

In this Convention, the term “racial discrimination” shall mean 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.

Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 1(1), 660 U.N.T.S. at 216.

114  Id., Preamble, 660 U.N.T.S. at 212–16.

115  Id., Art. 1(1), 660 U.N.T.S. at 216.

116  The travaux preparatoires of the Convention are cited in notes 99–101 supra.

117  See, e.g., N. Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination 41–42 (1970) [hereinafter cited as N. Lerner]; E. Vierdag, The Concept of Discrimination in International Law 89–90 (1973) [hereinafter cited as E. Vierdag]; Coleman, The Problem of Anti-Semitism under the International Convention on the Elimination of All Forms of Racial Discrimination, 2 Human Rights J. 609, 616–17 (1969) [hereinafter cited as Coleman]. These UNESCO statements on race are collected in A. Montagu, supra note 4.

118  See notes 1–14 supra and accompanying text for a discussion of the concept of race. See also E. Vierdag, supra note 117, at 87–90; Coleman, supra note 117, at 616–19.

119  For a detailed description of the significance and variety of color of different population groups see J. Baker, Race 149–60 (1974). See also E. Vierdag, supra note 117, at 97–99.

120  See Coleman, supra note 117, at 619–22; Schwelb, supra note 91, at 1006–07.

121  Cf. notes 70–76 supra and accompanying text. As Claude has observed: “The basic instruments of the League minority system purported to safeguard certain rights of ‘racial, religious or linguistic minorities,’ but the framers of the system made it clear that they regarded this terminology as synonymous with ‘national minorities.’ ” I. Claude, National Minorities: An International Problem 17 (1955).

122  During the debate before the Third Committee, Mr. Resich of Poland, in emphasizing the importance of including “national origin” as a forbidden ground in the Convention, stated:

A “nation” was created when persons organized themselves politically on the basis of a common culture, common traditions or other factors. There were nations that were made up of different ethnic groups, such as Switzerland. But there were also situations in which a politically organized nation was included within a different State and continued to exist as a nation in the social and cultural senses even though it had no government of its own. The members of such a nation within a State might be discriminated against, not as members of a particular race or as individuals, but as members of a nation which existed in its former political form.

20 U.N. GAOR, 3d Comm. 83 (1965).

Similarly, Mr. Villgrattner of Austria indicated:

For half a century the terms “national origin” and “nationality” had been widely used in literature and in international instruments as relating, not to persons who were citizens of or held passports issued by a given State, but to those having a certain culture, language and traditional way of life peculiar to a nation but who lived within another State.

Id. at 84.

123  Cf. A Montagu, supra note 4, at 59–71.

124  Coleman, supra note 117, at 623.

125  See chapter 7 supra, at notes 371–77 and accompanying text.

126  On anti-Semitism see A. Forster & B. Epstein, The New Anti-Semitism (1974); W. Korey, The Soviet Cage: Anti-Semitism in Russia (1973); P. Lendvai, Anti-Semitism without Jews (1971); H. Lumer, Soviet Anti-Semitism—A Cold War Myth (1964); Anti-Semitism: A Social Disease (E. Simmel ed. 1946); Rogow, Anti-Semitism, 1 Int’l Encyc. Soc. Sc. 345 (1968).

127  In the Commission on Human Rights and at the Third Committee of the General Assembly, the United States unsuccessfully sought to incorporate a clause specifically condemning anti-Semitism in the Convention. For an account see Schwelb, supra note 91, at 1011–15. Mr. Comay of Israel, in echoing the United States proposal, emphasized that “anti-Semitism, with which the entire history and fate of every generation of the Jewish people had been tragically bound up, should be expressly mentioned in the draft Convention.” 20 U.N. GAOR, 3d Comm. 115 (1965).

The history of the Jewish people was that of a branch of the human family which had been singled out for cruel hostility and savage persecution. Anti-Semitism, which had assumed at different times religious, racial, economic and cultural aspects, was unfortunately not something which belonged to the remote past, for, after having reached its culminating horror in the twentieth century with the atrocities of the Hitler regime, the declared aim of which was to ensure the “final solution of the Jewish question” by systematically exterminating all Jews in cold blood, anti-Semitism had now become the stock-in-trade of every political group aiming to subvert democratic institutions and freedoms. It was thus precisely because anti-Semitism continued to exist in the world that it must be mentioned expressly in the Convention.

Id.

His lone voice was overshadowed, however. The Third Committee approved, instead, the Greek-Hungarian proposal “not to include in the draft International Convention on the Elimination of All Forms of Racial Discrimination any reference to specific forms of racial discrimination.” Id. at 113, 118. Mr. Rogers of the United States, in expressing disappointment over the outcome, indicated that

his delegation was firmly convinced that anti-Semitism, which constituted a particularly dangerous form of racial discrimination, deserved special mention just as apartheid did. Thus, in conjunction with Brazil, his delegation had submitted an amendment to include in the Convention an article condemning anti-Semitism. Anti-Semitism was one of the gravest and most persistent problems facing humanity, dating back over 2,000 years. Historically, it had been a barometer of the political health of States: where Jews had been unsafe, other minorities also soon found themselves in danger. That was what had happened in 1939.

Id. at 119.

Finally, he stressed that “it was clear that there was a general feeling condemning anti-Semitism and that anti-Semitism was covered by the terms of the Convention.” Id.

128  See Coleman, supra note 117; Schwelb, supra note 91, at 1014–15. See also Lerner, Anti-Semitism as Racial and Religious Discrimination under United Nations Conventions, 1 Israel Y.B. on Human Rights 103 (1971).

129  Convention on the Elimination of All Forms of Racial Discrimination, Art. 1(1), supra note 90, 660 U.N.T.S. at 216.

130  Id., Art. 5, 660 U.N.T.S. at 220–22 (italics added).

131  Id.

132  Id., Art. 5(a), 660 U.N.T.S. at 220.

133  Id., Art. 5(b).

134  Id., Art. 5(c).

135  Id., Art. 5(d)(i, ii).

136  Id., Art. 5(d)(iii).

137  Id., Art. 5(d)(iv).

138  Id., Art. 5(d)(v).

139  Id., Art. 5(d)(vii, viii), 60 U.N.T.S. at 222.

140  Id., Art. 5(d)(ix).

141  Id., Art. 5(e)(i).

142  Id., Art. 5(e)(ii).

143  Id., Art. 5(e)(iii).

144  Id., Art. 5(e)(iv).

145  Id., Art. 5(e)(v).

146  Id., Art. 5(e)(vi).

147  Id., Art. 5(d)(vi).

148  Id., Art. 5(f).

149  See text accompanying note 130 supra.

150  This phrase is employed to illustrate “political rights,” “civil rights,” and “economic, social and cultural rights” in Art. 5(c–e). Thus, Art. 5(c) reads:

Political rights, in particular the rights to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service.

Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 5(c), 660 U.N.T.S. at 220 (italics added).

151  Art. 5(f) states: “The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks.” Id., Art. 5(f), 660 U.N.T.S. at 222 (italics added).

152  Lerner has pointed out that “[t]he word ‘notably’ was used in order to avoid a restrictive interpretation of the rights enumerated.” N. Lerner, supra note 117, at 67.

153  See Schwelb, supra note 91, at 1005.

154  Id.

155  See Elkind, Discrimination: A Guide for the Fact Finder (International Convention on the Elimination of All Forms of Racial Discrimination), 32 U. Pitt. L. Rev. 307, 312–19 (1971).

156  Report of the Sixteenth Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, Draft Art. 1(1), at 45–46, U.N. Doc. E/CN.4/873 (E/CN.4/Sub. 2/241) (1964). See also N. Lerner, supra note 117, at 39–40, 43; Schwelb, supra note 91, at 1003–04.

157  See Report of the Committee on the Elimination of Racial Discrimination, 28 U.N. GAOR, Supp. (No. 18) 10–12, U.N. Doc. A/9018 (1973).

158  Mr. Fayez A. Sayegh of Kuwait.

159  Report of the Committee on the Elimination of Racial Discrimination, 28 U.N. GAOR, Supp. (No. 18) 12, U.N. Doc. A/9018 (1973).

160  Id.

161  Id.

162  See chapter 8 supra.

163  See note 156 supra and accompanying text.

164  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Preamble, 660 U.N.T.S. at 212–16.

165  When the Convention on Racial Discrimination was adopted in Dec. 1965, the two draft International Covenants on Human Rights were nearing completion in the protracted process of drafting and redrafting, which had commenced shortly after the adoption of the Universal Declaration of Human Rights in Dec. 1948. Subsequently, both draft Covenants were, on Dec. 16, 1966, adopted and opened for signature, ratification, and accession by the General Assembly.

166  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 1(1), 660 U.N.T.S. at 216.

167  “It was agreed finally,” as Lerner has pointed out in his commentary, “that the four mentioned terms would cover all aspects of discrimination which should be taken into account.” N. Lerner, supra note 117, at 41.

168  Cf. id.; Schwelb, supra note 91, at 1001.

169  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 4, 660 U.N.T.S. at 218–20.

170  Id., Art. 4(a), 660 U.N.T.S. at 220.

171  Id., Art. 4(b).

172  Id., Art. 4.

173  Id., Art. 5(d)(viii–ix), 660 U.N.T.S. at 222. Art. 4 is a very controversial provision and has provoked considerable apprehension, especially within the United States, because of its potential incompatibility with broad freedom of expression. See, e.g., Hauser, United Nations Law on Racial Discrimination, [1970] Proc., Am. Soc’y Int’l L. 114, 117–18; Henkin, National and International Perspectives in Racial Discrimination, 4 Human Rights J. 263, 266 (1971). But see Bitker, The International Treaty against Racial Discrimination, 53 Marq. L. Rev. 68, 75–76 (1970); Ferguson, The United Nations Convention on Racial Discrimination: Civil Rights by Treaty, 1 Law in Transition Q. 61, 71–75 (1964); Reisman, Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination, 1 Denver J. Int’l L. & Policy 29 (1971) [hereinafter cited as Reisman].

174  McKean has aptly observed that

in international legal usage, “discrimination” has come to acquire a special meaning. It does not mean any distinction or differentiation but only arbitrary, invidious or unjustified distinctions, unwanted by those made subject to them. Moreover, it does not forbid special measures of protection designed to aid depressed groups, classes or categories of individuals, so long as these special measures are not carried on longer than is reasonably necessary. . . .

In this respect, the definition accepted in the international sphere is more advanced and sophisticated than that adopted in most municipal legal systems. This is an important instance of international law and the work of international institutions providing inspiration for municipal law, and a reversal of the usual situation whereby international law adapts principles of municipal law by analogy to deal with international problems.

McKean, The Meaning of Discrimination in International and Municipal Law, 44 Brit. Y.B. Int’l L. 177, 185–86 (1970).

175  In the proceedings of the South West Africa cases before the International Court of Justice, the plea of Liberia and Ethiopia that a general norm of nondiscrimination existed under international law was repeatedly referred to by South Africa as alleged norms of “non-differentiation,” which would obviously be untenable. “The response of Judge Tanaka in his dissenting opinion is illuminating: Briefly, a different treatment is permitted when it can be justified by the criterion of justice. One may replace justice by the concept of reasonableness generally referred to by the Anglo-American school of law.” South West Africa Cases (Second Phase), [1966] I.C.J. 4, 306 (Tanaka, J., dissenting). “Justice or reasonableness,” he added, “as a criterion for the different treatment logically excludes arbitrariness,” Id. He further elaborated:

Equal treatment is a principle but its mechanical application ignoring all concrete factors engenders injustice. Accordingly, it requires different treatment, taken into consideration, of concrete circumstances of individual cases. The different treatment is permissible and required by the considerations of justice; it does not mean a disregard of justice.

Id. at 308.

176  Art. 1(4) reads:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 1(4), 660 U.N.T.S. at 216.

Art. 2(2) reads:

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

Id., Art. 2(2), 660 U.N.T.S. at 218.

177  With the question of special assistance to deprived groups we propose to deal in some length elsewhere.

178  Convention on the Elimination of All Forms of Racial Discrimination, Arts. 2(1)(a–c), supra note 90, 660 U.N.T.S. at 218.

179  Id.

180  Id., Art. 4(c), 660 U.N.T.S. at 220.

181  Henkin, National and International Perspectives in Racial Discrimination, 4 Human Rights J. 263, 265 (1971).

182  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 2(1)(d), 660 U.N.T.S. at 218.

183  Id., Art. 6, 660 U.N.T.S. at 222.

184  See chapter 7 supra, at note 453–73 and accompanying text.

185  G.A. Res. 2785, 26 U.N. GAOR, Supp. (No. 29) 81, U.N. Doc. A/8429 (1971).

186  G.A. Res. 2544, Preamble, 24 U.N. GAOR, Supp. (No. 30) 53, U.N. Doc. A/7630 (1969).

187  G.A. Res. 3057, 28 U.N. GAOR, Supp. (No. 30) 70, U.N. Doc. A/9030 (1973).

188  Id., Preamble.

189  Id., Annex at 1.

190  ICJ Advisory Opinion on Namibia, supra note 15.

191  Id. at 58.

192  Id. at 57.

193  South West Africa Cases (Second Phase), [1966] I.C.J. 4, 284 (Tanaka, J., dissenting).

194  Id. at 293.

195  Convention on Human Rights and Fundamental Freedoms, adopted Nov. 4, 1950, Art. 14, 1950 Europ. T.S. No. 5, 213 U.N.T.S 232 (italics added).

196  American Convention on Human Rights, signed Nov. 22, 1969, Art. 1(1), OAS Official Records OEA/Ser.K/XVI/1.1, Doc. 65, Rev. 1, Corr. 1 (Jan. 7, 1970), reprinted in 9 Int’l Legal Materials 101 (italics added).

197  South West Africa Cases (Second Phase), [1966] I.C.J. 4, 299 (Tanaka, J., dissenting).

198  H. Santa Cruz, supra note 16, at 28.

199  Id.

200  See notes 112–28 supra and accompanying text.

201  See, e.g., Constitution, Art. 20(2) (Czechoslovakia, 1960), reprinted in 2 A. Peaslee, Constitutions of Nations 231 (3d ed. 1966) [hereinafter cited as A. Peaslee]; Constitution, Arts. 123 and 135 (1936, amended 1965) (Union of Soviet Socialist Republics), reprinted in 2 A. Peaslee, supra at 1005–06.

202  See, e.g., Civil Code of Cambodia, Art. 21, cited in H. Santa Cruz, supra note 16, at 28 n.43.

203  See, e.g., Constitution, Art. 1 (1960) (Congo [Brazzaville]), reprinted in 1 A. Peaslee, supra note 201, at 85–86; Constitution, Arts. 2 and 3 (1958, amended 1963) (France), reprinted in 3 A. Peaslee, supra note 201, at 312–13.

204  See, e.g., Constitution, Arts. 10(2–3) (1962) (Nepal), reprinted in 2 A. Peaslee, supra note 201, at 774.

205  See, e.g., Constitution, Art. 15 (1964) (Congo [Leopoldville]), reprinted in 1 A. Peaslee, supra note 201, at 105.

206  See, e.g., id.

207  See, e.g., id.

208  See, e.g., Constitution, Art. 76 (1960) (Mongolian Peoples Republic), reprinted in 2 A. Peaslee, supra note 201, at 762.

209  See, e.g., Constitution, Art 14 (1963) (Kenya), reprinted in 1 A. Peaslee, supra note 201, at 264; Constitution, Art. 11 (1964) (Malawi), reprinted in 1 A. Peaslee, supra note 201, at 482; Constitution, Art. 17 (1962, amended 1963) (Uganda), reprinted in 1 A. Peaslee, supra note 201, at 928–29; Constitution, Art. 14 (1964) (Zambia), reprinted in 1 A. Peaslee, supra note 201, at 1031.

210  See, e.g., Electoral Law of 24 Oct. 1956 (Poland), cited in H. Santa Cruz, supra note 16, at 30 n.69.

211  See, e.g., id.

212  See, e.g., Constitution, Art. 11 (1951, amended 1963) (Libya), reprinted in 1 A. Peaslee, supra note 201, at 437.

213  See, e.g., Constitution, Art. 25 (1967) (Ecuador), reprinted in 4 A. Peaslee, supra note 201, at 463. Art. 150, para. 1 of the Constitution of Brazil provides: “All are equal before the law, without distinction as to sex, race, occupation, religious creed, or political convictions. Racial prejudice shall be punished by law.” Constitution, Art. 150, para. 1 (1967) (Brazil), reprinted in 4 A. Peaslee, supra note 201, at 192 (italics added).

214  Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to h-6 (1970), as amended, 42 U.S.C. §§ 2000c, c-6(a)(2), c-9, d-5, e to e-17, h-2 (Supp. II, 1972). For its predecessors see the Civil Rights Act of 1960, Pub. L. No. 86–449, 74 Stat. 90; Civil Rights Act of 1957, Pub. L. No. 85–315, 71 Stat. 634.

215  Voting Rights Act of 1965, 42 U.S.C. §§ 1973–73p (1970).

216  Fair Housing Act of 1968, 42 U.S.C. §§ 3601–31 (1970).

217  Race Relations Act of 1968, c. 71. The texts of this Act and its predecessor, the Race Relations Act of 1965, c. 71, are reprinted in A. Lester & G. Bindman, Race and Law in Great Britain 419–58 (1972). For a useful legislative background consult H. Street, G. Howe, & G. Bindman, The Street Report on Anti-Discrimination Legislation (1967). See also I. MacDonald, Race Relations and Immigration Law (1969); Hepple, Race Relations Act 1968, 32 Modern L. Rev. 181 (1969).

218  See generally D. Bell, Race, Racism and American Law (1973) [hereinafter cited as D. Bell]; 2 T. Emerson, D. Haber, & N. Dorsen, Political and Civil Rights in the United States (stu. ed. 1967) [hereinafter cited as T. Emerson, D. Haber, & N. Dorsen]; 2 N. Dorsen, N. Chachkin, & S. Law, Emerson, Haber & Dorsen’s Political and Civil Rights in the United States (1973 Supp) [hereinafter cited as N. Dorsen, N. Chachkin, & S. Law]; O. Fiss, The Civil Rights Injunction (1978); J. Greenberg, supra note 19; M. Konvitz, Bill of Rights Reader 523–611 (5th ed. rev. 1973); J. Nowak, R. Rotunda, & J. Young, Handbook on Constitutional Law 515–89 (1978): 2 The Constitution and the Supreme Court: A Documentary History 201–341 (L. Pollak ed. 1968); E. Rostow, The Ideal in Law 13–73 (1978); L. Tribe, American Constitutional Law 991–1052 (1978); Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972); Larson, The New Law of Race Relations, 1969 Wis. L. Rev. 470; Pollak, Law and Liberty: The American Constitution and the Doctrine That All Men Are Created Equal, 2 Human Rights 1 (1972); Scherer, Bakke Revisited, 7 Human Rights 22 (No. 2, 1978).

219  347 U.S. 483 (1954).

220  Id. at 495.

221  After the first Brown decision of May 1954, the Supreme Court further ruled in 1955 that desegregation in public schools be effected with “all deliberate speed.” Brown v. Board of Education, 349 U.S. 294, 301 (1955). Subsequently, there have been repeated attempts, through various devices, to avoid, evade, and delay compliance with the Court ruling. For a detailed description see A. Blaustein & C. Ferguson, Desegregation and the Law (2d ed. 1962). Confronted with a flow of litigation, the Court has generally remained vigilant in barring various devices designed to sidestep the holding and spirit of the Brown decisions. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v. County School Bd., 391 U.S. 430 (1968).

222  Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944).

223  See D. Bell, supra note 218, at 129–58; 2 T. Emerson, D. Haber, & N. Dorsen, supra note 218, at 1141–1219; 2 N. Dorsen, N. Chachkin, & S. Law, supra note 218, at 39–75.

224  Voting Rights Act of 1965, 42 U.S.C. §§ 1973–73p (1970).

225  Voting Rights Act Amendments of 1970, 42 U.S.C. §§ 1973b(a), b(b), as to bb-4 (1970).

226  See notes 223–25 supra.

227  Georgia v. United States, 411 U.S. 526 (1973); Oregon v. Mitchell, 400 U.S. 112 (1971); Gaston County v. United States, 395 U.S. 285 (1969); Hadnott v. Amos, 394 U.S. 358 (1969); Katzenbach v. Morgan, 384 U.S. 641 (1966); South Carolina v. Katzenbach, 383 U.S. 601 (1966). See also United States Comm’n on Civil Rights, Political Participation (1968); Avins, Literacy Tests and the Fifteenth Amendment: The Original Understanding, 12 So. Tex. L.J. 24 (1970); Christopher, The Constitutionality of the Voting Rights Act of 1965, 18 Stan. L. Rev. 1 (1965); Cox, Constitutionality of the Proposed Voting Rights Act of 1965, 3 Houston L. Rev. 1 (1965); Rice, Voting Rights Act of 1965: Some Dissenting Observations, 15 Kan. L. Rev. 159 (1966); Note, 1965 Voting Rights Act: An Evaluation, 3 Harv. Civ. Rights-Civ. Lib. L. Rev. 357 (1968).

228  See 2 T. Emerson, D. Haber, & N. Dorsen, supra note 218, at 1645–73; 2 N. Dorsen, N. Chachkin, & S. Law, supra note 218, at 269–87. See also Edward S. Corwin, The Constitution and What It Means Today 416–18 (13th rev. ed. H. Chase & C. Ducat eds. 1973); Avins, Toward Freedom of Choice in Places of Public and Private Accommodation, 48 Neb. L. Rev. 21 (1968); Avins, What Is a Place of “Public” Accommodation? 52 Marq. L. Rev. 1 (1968).

229  See, e.g., Daniel v. Paul, 395 U.S. 298 (1968) (snack bars); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (motels and other places of public accommodation); Watson v. Memphis, 373 U.S. 526 (1963) (parks and other recreational facilities); Wright v. Georgia, 373 U.S. 284 (1963) (parks); Gayle v. Browder, 352 U.S. 903 (1956) (buses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (golf courses); Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (beaches).

230  Cf. D. Bell, supra note 218, at 607–710; 2 T. Emerson, D. Haber, & N. Dorsen, supra note 218, at 1579–1643; 2 N. Dorsen, N. Chachkin, & S. Law, supra note 218, at 222–68.

231  Cf. D. Bell, supra note 218, at 711–856; 2 T. Emerson, D. Haber, & N. Dorsen, supra note 218, at 1467–1567; 2 N. Dorsen, N. Chachkin, & S. Law, supra note 218, at 175–221.

232  An example is discrimination in health and welfare services. See 2 T. Emerson, D. Haber, & N. Dorsen, supra note 218, at 1716–46; 2 N. Dorsen, N. Chachkin, & S. Law, supra note 218, at 300–46.

233  388 U.S. 1 (1967).

234  Id. at 10.

235  392 U.S. 409 (1968).

236  Id. at 443–44. In the words of Justice Stewart, who delivered the opinion of the Court:

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.

Id. at 443 (footnotes omitted).

237  Larson, The New Law of Race Relations, 1969 Wis. L. Rev. 470, 486.

238  Id. at 471. The development in the national law of the United States, entirely paralleling and supporting the Convention on Racial Discrimination, is comprehensively traced and analyzed by Professor Nathaniel Nathanson. See Nathanson, International Convention on the Elimination of All Forms of Racial Discrimination: The Convention Obligations Compared with the Constitutional and Statutory Law of the United States (paper presented to the Panel on Human Rights Law and International Implementation, American Society of International Law, February 1974). A comprehensive study would undoubtedly demonstrate the comparable trend of development in differing national communities. Cf. H. Santa Cruz, supra note 16, at 26–42; Batshaw, A Landmark Decision against Discrimination in Canada, 4 Human Rights J. 207 (1971); Keith, Race Relations and the Law in New Zealand, 6 Human Rights J. 329 (1973); Kinsella, The Canadian Model for the Protection from Discrimination, 4 Human Rights J. 270 (1971); Smith, Prevention of Discrimination under Kenya Law, 20 Int’l & Comp. L.Q. 136 (1971).

239  Cf. Reisman, supra note 173, at 51–54; Schacter, How Effective Are Measures against Racial Discrimination, 4 Human Rights J. 293 (1971).

240  For detailed formulation and application of these goals, see R. Arens & H. Lasswell, In Defense of Public Order: The Emerging Field of Sanction Law 199–203 (1961); M. McDougal & F. Feliciano, Law and Minimum World Public Order 261–383 (1961).

241  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 7, 660 U.N.T.S. at 222.

242  Id., Art. 4, 660 U.N.T.S. at 218–20.

243  Id., Art. 6, 660 U.N.T.S. at 222.

244  Id.

245  Id., Arts. 1(4) and 2(2), 660 U.N.T.S. at 216, 218.

246  Id., Art. 7, 660 U.N.T.S. at 222.

247  Oriented to the long term, the subgoals of reconstruction and prevention may in many ways be overlapping; they are integrative rather than mutually exclusive.

248  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 2(1)(e), 660 U.N.T.S. at 218.

249  Id., Arts. 4(a–b), 660 U.N.T.S. at 220.

250  Id., Art. 8(1), 660 U.N.T.S. at 224.

251  Id., Art. 9, 660 U.N.T.S. at 224–26.

252  Id., Arts. 11–13, 660 U.N.T.S. at 226–30.

253  Id., Art. 14, 660 U.N.T.S. at 230–32.

254  Id., Art. 15, 660 U.N.T.S. at 232–34.

255  See Das, Measures of Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination with Special Reference to the Provisions concerning Reports from States Parties to the Convention, 4 Human Rights J. 213 (1971); Schwelb, supra note 91, at 1034–37. Cf. C. Jencks, The International Protection of Trade Union Freedom (1957); E. Landy, The Effectiveness of International Supervision: Three Decades of I.L.O. Experience (1966); Schwelb, Civil and Political Rights: The International Measures of Implementation, 62 Am. J. Int’l L. 827 (1968); Schwelb, Some Aspects of the Measures of Implementation of the International Covenant on Economic, Social and Cultural Rights, 1 Human Rights J. 375 (1968).

256  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 9(1), 660 U.N.T.S. at 224–26.

257  Id., Art. 9(2), 660 U.N.T.S. at 226.

258  Reisman, supra note 173, at 59.

259  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Arts. 11–13, 660 U.N.T.S. at 226–30.

260  Id., Art. 11(1), 660 U.N.T.S. at 226.

261  Id., Art. 11(2).

262  Id., Art. 11(3). These requirements, as in general international law, would be dispensed with “where the application of the remedies is unreasonably prolonged.” Id.

263  Id., Art. 12(1)(a), 660 U.N.T.S. at 228.

264  Id. According to Art. 12(1)(b):

If the States Parties to the dispute fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission not agreed upon by the States Parties to the dispute shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its own members.

Id., Art. 12(1)(b).

265  Id., Art. 12(1)(a). Note the emphasis on “respect” for the Convention.

266  Id., Art. 13(1), 660 U.N.T.S. at 230. For a technical interpretation of this provision see Schwelb, supra note 91, at 1040–41.

267  Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, Art. 13(3), 660 U.N.T.S. at 230.

268  Id.

269  Id., Art. 14(1).

270  Id.

271  Id., Art. 14(9), 660 U.N.T.S. at 232.

272  Id., Art. 14(2–6), 660 U.N.T.S. at 230–32.

273  Id., Art. 14(7)(a), 660 U.N.T.S. at 232.

274  Id., Art. 14(7)(b).

275  Id., Art. 14(8).

276  As of Aug. 11, 1978, only seven states—Costa Rica, Ecuador, Italy, the Netherlands, Norway, Sweden, and Uruguay—had made the required declaration. Report of the Committee on the Elimination of Racial Discrimination, 33 U.N. GAOR, Supp. (No.18) 1, 96–98, U.N. Doc. A/33/18 (1978) [hereinafter cited as 1978 Report].

277  See text accompanying note 269 supra.

278  Convention on the Elimination of All Forms of Racial Discrimination, Art. 15(2)(a), supra note 90, 660 U.N.T.S. at 232–34.

279  J. Carey, UN Protection of Civil and Political Rights 151 (1970). Similarly, Mr. MacDonald of Canada, shortly after the Convention was approved by the Third Committee of the Assembly, characterized the incorporation of Art. 15 as “bad politics and worse law.” 20 U.N. GAOR, 3d Comm. 504 (1965). In the words of one commentator: “It makes the Committee on the Elimination of Racial Discrimination a kind of auxiliary organ to the organs dealing with the implementation of the right to self-determination, at the present the Trusteeship Council and the Committee of Twenty-four.” Schwelb, The Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination in International Law Ass’n, Report of the Fifty-Fifth Conference 605 (1974).

280  The general recommendations are presented in the Committee’s annual reports. See 1973 Report, 28 U.N. GAOR, Supp. (No. 18) 21–78, 103–07, 112–19, U.N. Doc. A/9018 (1973) [hereinafter cited as 1973 Report]; 1972 Report, 27 U.N. GAOR, Supp. (No. 18) 12–26, 37–39, 57–67, U.N. Doc. A/8718 (1972) [hereinafter cited as 1972 Report]; 1971 Report, 26 U.N. GAOR, Supp. (No. 18) 5–25, 31–34, U.N. Doc. A/8418 (1971) [hereinafter cited as 1971 Report]; 1970 Report, 25 U.N. GAOR, Supp. (No. 27) 9–11, 32–36, U.N. Doc. A/8027 (1970) [hereinafter cited as 1970 Report].

281  See 1973 Report, supra note 280, at 79–98, 106–07, 120–22; 1972 Report, supra note 280, at 27–29, 40–53, 68–71; 1971 Report, supra note 280, at 26–28, 31–47, 58–61; 1970 Report, supra note 280, at 11–14, 37–39.

282  Pursuant to Art. 10(1) of the Convention on the Elimination of All Forms of Racial Discrimination, supra note 90, 660 U.N.T.S. at 226, the Committee adopted its Provisional Rules of Procedure (seventy-eight rules in total) in 1970 at its first and second sessions. For its text see 1970 Report, supra note 280, at 17–31. Prior to the adoption of the Committee’s provisional Rules of Procedures, a comprehensive, detailed draft had been proposed in a law journal. See Newman, The New International Tribunal, 56 Calif. L. Rev. 1559 (1968).

For the subsequent adoption of the amendments to the Committee’s Provisional Rules of Procedure see 1971 Report, supra note 280, at 4, 33 (Rule 35); 1972 Report, supra note 280, at 8–11, 37 (Rules 64A and 66A); 1973 Report, supra note 280, at 6–8, 103 (Rules 13 and 56).

283  Nevertheless, allegations arising from the reports submitted to the Committee by Panama about discrimination in the Panama Canal Zone and by Syria about discrimination in the Golan Heights took on the character, in a manner of speaking, of interstate complaints. See 1971 Report, supra note 280, at 13–25, 31, 34; 1973 Report, supra note 280, at 30–31, 51–52, 104–05. See also L. Sohn & T. Buergenthal, supra note 67, at 866–98; Schwelb, supra note 279, at 593–605.

284  1978 Report, supra note 276, at 1, 96–98.

For more recent developments, see the documents cited in chapter 4 supra, at note 732. See also Buergenthal, Implementing the UN Racial Convention, 12 Texas Int’l L.J. 187 (1977); United Nations Decade for Action to Combat Racism and Racial Discrimination, 10 Objective: Justice 1 (No. 1, 1978).