Abstract

Excerpted From: Marissa Jackson Sow, Whiteness as Contract in the Racial Superstate, 14 UC Irvine Law Review 459 (May, 2024) (311 Footnotes) (Full Document)

The persistence of anti-Black oppression by and throughout the Global North is an unfortunate testament to the ineffectiveness of the public international law regime in providing legal remedies for peoples of African descent--people who, by and large, cannot count upon their national governments for racial justice. Notable scholars have advanced sophisticated, compelling arguments regarding the failures of the United Nations (UN) and international law to support and protect the rights of Afro-descendant peoples. This Article joins especially those who have called for a fully synthesized application of Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) agreeing that the principles of anti-discrimination and equality upheld by the letter of international law is belied by international law's colonial foundations and continued privileging of states' neo-imperial interests over justice. It calls for the abandonment of the prevalent belief that international law intends to advance universal human equality and anti-racism, and it makes the case that international law fails to implement anti-racism because it is inherently and intentionally anti-Black and anti-Indigenous.

This Article's central argument is that the public international law regime has reinforced the subjugation of people of African descent across nations, and does so because it is premised upon a political commitment to Euro-American superiority, sovereignty, and dominance and an accompanying commitment to Afro-, Asian-, and Indigenous subjection, reception, and degradation. Two interrelated dynamics support this argument: (1) the employment of international law, via racial contracting among Global Northern powers, to squash or deny human rights claims and complaints by people of African descent; and (2) the perpetuation of racialized geopolitical governance--via social contracting and traditional contracting--through the Global North's manipulation and selective interpretation and enforcement of international law. The racial contract in force at the national level in racial states such the United States, Brazil, the United Kingdom, France, South Africa, and beyond is also in force within the global institutional order--and is given force through the UN and the public international law regime.

The operational mechanisms that sustain national racial contracts also support the contracting of white supremacy throughout the public international law regime. Negotiation and binding accords are means through which the racial contract is enforced at the UN, by states seeking to maintain or strengthen racialized geopolitical hegemonies. Thus, despite the noble work of the public servants who dedicate themselves to justice, peace, sustainability, security, and good governance at the institution, the UN thus inevitably replicates and perpetuates anti-Blackness, through both the substance of its laws and its procedures. Because the UN fails to protect Afro-descendant peoples globally, its effectiveness and legitimacy continue to be compromised, and the norms and laws over which it has jurisdiction continue to do a world of harm to people raced as nonwhite.

The Article begins, in Part I, with an explanation of the application of critical contract theory, via the Whiteness-as-Contract framework, to the UN and the public international law regime. In this Part, the Article sets forth the goals of the Racial Superstate and articulates the terms of the UN's racial contract, explaining how international law perpetuates the contract and protects it from breach. Part II offers up as a case study a description of the Human Rights Council's June 2020 Special Session, which serves as a case study for the systemic exclusion of Black people from the global body politic despite their physical presence on the Council, active formal participation, and focused anti-racism advocacy. Part III of the Article explores the structure, substance, and procedures of international law, discussing the reliance of dominant states upon the extant systems as structured and applied to exclude people of African descent from the protections of international law and proprietorship within international organizations. In Part IV, the Article proposes the rescission of the global racial contract and dissolution of the Racial Superstate in exchange for an anti-racist social contract. It reiterates calls for the recognition of racism as a violation of international law, and the rejection of racism and race denial within international law scholarship. Thereafter, the Article concludes.

[. . .]

On October 7, 2022, the Human Rights Council held a vote on a resolution to take concrete action to combat racism, racial discrimination, xenophobia, and “related forms of intolerance.” The resolution, entitled “From Rhetoric to Reality,” marked a concerted effort to move beyond assertions of investment in racial justice toward investments in racial justice by calling for financial and human capital to support the mandate of the Working Group of Experts on People of Descent. The resolution was adopted with thirty-two “yea” votes, nine votes against, and six abstentions. The states parties voted against were: Czech Republic, France, Germany, Montenegro, Netherlands, Poland, Ukraine, the United Kingdom, and the United States of America--all members of the WEOG or Eastern European bloc. Among the UK's objections to the resolution was the claim that states are required to pay reparations for slavery and colonialism. The UK noted, rather ironically, that enslavement and colonialism were not violations of international law at the time they occurred and objected on that basis--with no reflection on why enslavement and colonialism were not considered violations of international law at the time and which states would have made such decisions.

Since the October 7, 2023, Hamas attack on Israel and the subsequent Israeli bombardments of Gaza and the West Bank, things have both changed and remained the same at the UN. A December 2023 UN General Assembly resolution calling for an immediate humanitarian ceasefire passed with a large majority of states voting in favor of the adopted resolution. Of the ten states voting against and the twenty-three states abstaining were members of the WEOG bloc and the Eastern European bloc: United States, Israel, Austria, the Czech Republic, Guatemala, Liberia, Micronesia, Nauru, Papua New Guinea and Paraguay voted against the resolution; the UK, Germany, Hungary, Italy, Argentina, Malawi, the Netherlands, Ukraine, South Sudan, and Uruguay abstained. Notably, several WEOG states broke ranks with the United States, the UK, and Israel and voted for the resolution, including France, Denmark, Sweden, Finland, Norway, Australia, and Canada.

Only several weeks earlier, the General Assembly had adopted a similar resolution calling for a ceasefire with a smaller majority of 121 states as over forty states--including several WEOG states--abstained from voting. Austria, Croatia, the Czech Republic, Israel, and the United States were among fourteen states who voted against the resolution. Prior to the October resolution adoption, four attempts at adopting resolutions on pauses in the bombardments or ceasefires had failed in the UN Security Council: a mid-December 2023 vote was met with thirteen Security Council members in favor of a ceasefire, while the United Kingdom abstained and the United States offered the sole veto, blocking the resolution.

Days after the overwhelmingly successful General Assembly vote, a subsequent vote in the Security Council that did not call for a ceasefire but instead demanded immediate and unhindered humanitarian assistance to be delivered to Palestinians was held on December 22, 2023. The United States and Russia abstained--with Russia complaining that the resolution did not offer strong enough support for Palestinians and the United States objecting to a failure of the resolution to condemn Hamas. That the United States did not veto the resolution is a remarkable shift, which followed weeks of negotiations between States Parties. Still, the necessity of these negotiations--and the power of the United States and Russia to disrupt humanitarian aid supported by most of the world with a sole vote against--shows that disproportionate power remains with and on behalf of Whiteness.

Still, there are other signs of continued, resolute resistance against the UN's Whiteness contract and increased demands that international law be put to work on behalf of all the worlds' peoples. A week after the Security Council vote, South Africa instituted proceedings against Israel before the International Court of Justice, accusing Israel of committing and having committed genocide in violation of the Genocide Convention against Palestinians in the Gaza Strip. South Africa requested that the Court issue provisional measures of protection for the Palestinian people. On January 26, 2024, the Court--with an American judge serving as the Court's president--found that “at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the [Genocide] Convention,” ordering Israel to prevent acts of Genocide in Gaza. The order of provisional measures was a stunning blow to Israel and its fellow WEOG allies who had characterized South Africa's application to the Court as meritless and baseless.

Breaching or interfering with the Racial Superstate's Whiteness contract has its consequences. On the same day of the ruling, Israel claimed that several employees of United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)--the UN agency tasked with meeting the needs of Palestinian refugees--had taken part in Hamas's October 7th attacks. Though UNRWA terminated its contracts with the accused employees without any evidence of their culpability, key WEOG group donors also decided to breach their own commitments to UNRWA by pausing their funding. Among those donors were the United States, Canada, Germany, Switzerland, Australia, the UK, Italy, the Netherlands, and Finland. donations to UNRWA in 2023 alone accounted for nearly a third of UNRWA's contributions in the past year, making the suspension in funding devastating to the agency and the Palestinian people served thereby. The WEOG states are clearly unhappy with the shifts in bargaining power reflected in the UN's support of Palestinians and the ICJ's order: the timing of the funding suspension has led commentators to muse that notwithstanding any potential veracity of the accusations against the now-fired UNRWA employees, the decisions to suspend, or breach, funding commitments were acts of political retaliation.

Within the international law regime, as within the legal regimes of individual states, contracting is fundamental to race and race is central to contracting. Colonial racial formations serve, in the present era, as markers of who deserves and who does not deserve human rights and humanitarian protections, and of which states are entitled to bargaining and decision-making power within institutions like the UN. This Article has sought to highlight that the social contracting that undergirds the Racial Superstate is also supported by enforceable agreements between and among states. Take, for example, the news reports of a confidential report generated by diplomats from EU countries arguing “for a more 'transactional’ approach to foreign aid that would tie funding for African countries to their willingness to work 'based on common values and a joint vision”’ relating to the war in Ukraine. Specifically, European countries have become concerned about losing African nations' support for Ukraine and the war or, as reported, “the battle for hearts and minds in Africa;” the EU is opting to place financial pressures on African countries--essentially buying, or extorting, African support. An African nation that wished to maintain ideological independence regarding the war effort would therefore have to do so at the cost of increased economic, social, and therefore political instability at home--factors that would weaken it domestically and regionally, while also rendering it more vulnerable to various Western interventions.

Contracting for foreign aid allows powerful, White, Western states to exert control over Africa and its people and place constraints on African sovereignty and self-determination. Likewise, decisions to suspend UNRWA funding have created additional discursive space for Israel's arguments that UNRWA should be abolished. With colonial extraction contributing to the Global South's reliance upon Western aid in the first instance, the neo-coloniality of the envisioned aid plan becomes apparent.

The human costs of white supremacy and Eurocentrism in the international law regime are extremely high for the victims of racism and survivors of neo-colonialism. Nonwhite people and people of the Global South--or, as Sylvia Wynter calls them, “the postcolonial variant of Fanon's category of les damnés” themselves trapped within a matrix in which international law is held up as a path of legal possibility, commerce, development, and recourse while they are also systematically denied its benefits.

Racial states are both derivative and catalytic of the Racial Superstate. As “les damnés,” the problems that racialized people face in demanding and obtaining remedies for violations of their rights and in competing for and exercising ownership of the world's resources on the global scale parallel in many ways the problems that Black and Indigenous people face in engaging these activities in the United States. Despite formal laws guaranteeing strict equality between people regardless of race, ethnicity, and national origin, Indigenous people and people of African descent, and the nation-states they populate, enjoy tiered political personhood at best. International law has a racism problem because racism is, in many ways, its fuel. Racism is, thus, not merely a problem for international law but for the racialized people hoping to find justice thereunder.

Calling upon the UN and its most powerful member states to recognize and respect the personhood--and the humanity--of Black, Brown, and Indigenous peoples is at the core of the issues explored in this Article. The softly-spoken understanding that the concept of genocide cannot apply to BlackAmericans and should not be applied to Palestinians must, at a minimum, be loudly and formally disavowed; not only does this wrongful understanding fail to account for the manifestations of racism, it performs the terms of the global racial contract which specify that certain racialized communities are to be excluded from legal and political personhood. So does the racial tiering of refugees and the racial contracting that pervades nations' systems of refugee admissions and asylum claims processing.

Whether physical, political, legal, or psychological, the process of deconstructing oppression--of decolonization--is fundamentally about renegotiation. Slavery in the United States provides some clear examples; the period of Reconstruction (which was also intended to be a period of deconstruction) saw American federal law change dramatically, conferring upon people who had once been constructed into legal status as personal property of slaveholders the rights to themselves contract to hold, convey, sell, and lease property. The social contract, given force of law, that held that White Americans could purchase and sell people of African descent was thus renegotiated to abolish slavery, and this process of abolition would force the rescission of the previously enforceable contracts that slaveholders had executed for enslaved labor. In the social contract realm, renegotiation of an anti-racist social contract that will govern the global institutional order and transform international law will involve the imposition of those formally excluded from the body politic thereupon, making demands either for independence or inclusion and concessions from those who have been hoarding power heretofore. But, as Whiteness as Contract seeks to make clear, the renegotiation of the body politic and its social contract to include new classes of members also requires the renegotiation of the commercial agreements that sustained the body politic as it was initially formed, as well as the political charters, compacts, and treaties that had once assumed for the terms of the original social contract.

Acknowledging racism as a human rights violation, by contrast, is a way of reconstructing legal personhood into racialized and colonized peoples, and it also potentially opens a path by which those who have experienced racism may seek to avail themselves of remedies corresponding to their rights. Should international law adopt a comprehensive understanding of the nature of racism and its consequences, renegotiation of international criminal law, the law of refugees, and international human rights will be compulsory. So, too, will the dismantling of racism in the structure of the UN as well as within its workforce. And of course, those of us who study and teach international law have a responsibility to deconstruct our assumptions about international law and the global institutional order as it currently exists. International law's racial contract is an accord worth breaching. Whether it is breached or not will determine whether international law is worth respecting and worth keeping around.

Assistant Professor, University of Richmond School of Law. B.A., Northwestern University, J.D. Columbia Law School, LL.M, The London School of Economics and Political Science.