Adjudicating Race under International Law. International Courts and the Racial Conundrum
(2018) Race, Science & Society : Global Perspectives — Location: University of Pennsylvania (United States) (12.April.2018)
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- “Race” confronts international law with a dilemma. This term appears in various international instruments aimed at protecting certain vulnerable groups against harmful treatments ranging from discrimination to genocide. But the idea that races exist as fixed, objective, natural categories, determining the social and psychological traits of individuals, is today widely rejected as scientifically false and as contradicting the liberal values of human rights and human dignity which are allegedly at the core of contemporary international law. Yet in order to protect people against disadvantage, exclusion, or violence imposed upon them by those who still believe, consciously or not, that races do exist, the judges tasked with applying these legal instruments sometimes have to make a determination as to whether a group or an individual is of a certain “race” within the meaning of law. Against this background, this paper aims to analyze how international judges “adjudicate” racial or ethnic identity when this is necessary to rule a case. What conception of race or ethnicity is reflected in their reasoning? Do they still rely on essentialist, reified, approaches to these concepts? To what extent has the notion that race and ethnicity are social constructs permeated judicial reasoning? And what are the tensions between social science views on race and the working of the legal system? In the first part of the paper, I briefly describe how race and ethnicity entered international law and present the main international legal texts referring to these concepts (I). Part II highlights several evolutions that have made the assessment of race or ethnicity by international judges increasingly challenging. The last two parts examine the experience of two types of international Courts in dealing with race and ethnicity: the European Court of Human Rights (III) and International Criminal Tribunals (IV).
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Ringelheim, J. (2018). Adjudicating Race under International Law. International Courts and the Racial Conundrum. Race, Science & Society : Global Perspectives, University of Pennsylvania (United States). https://hdl.handle.net/2078.5/215797