Settler colonialism, race and the law: why structural racism persists

Introduction this apparent tension between precarious belonging and the imaginary of the ‘model
minority’ has been constitutive of the US as a racially stratified settler colony since its
very founding.
(…) a detailed account of the role of law — both national and international — in the
perpetuation of racism, as well as its usefulness for imagining and fostering our
coexistence beyond the narrow confines of the settler state and liberal legalism. In the
process, Saito challenges our very idea of a clear and self-evident delimitation
between the ‘national’ and the ‘international’. She does so by conceptualising the
relationship between the settler state and its minority populations as a colonial one
and, by implication, one subject to international legal rules, including the right to self-
determination. Overall, her engagement with the discipline of international law has
two aspects.
(…)international law — albeit not perfect — offers rules and remedies of greater
value to the oppressed and exploited than US domestic law (…)but involves an
implicit remaking of the discipline itself.
Comment: The structure approach to racism accounts for the role and place of
institutions in the maintenance of racial stratification. Interchangeably, it questions the
role of law – national and international – in the machinery of structural racism.
The role was redesign by the quest of colonialism. The latter diluted the delimitation
between the national and the international, and at a later point, shaped international law
in a way to offer remedies to the oppressed and exploited.
Separated at birth?  TWAIL scholars, including me, often work under the assumption that CRT is
critical race theory excessively focused on the particularities of the US, ignoring (or, at the very least,
and critical downplaying) questions of imperialism (…)CRT scholars’ concerns about TWAIL
approaches to sidelining questions of race and racism or using postcolonial literature without
international law always reflecting on its blind spots.
CRT grew out of the critical legal studies (‘CLS’) movement in the US (…)CLS
movement sought to attack legal formalism by arguing that law was fundamentally
indeterminate and, therefore, supposedly objective determinations of its content,
especially in the process of adjudication, were both logically incoherent and politically
suspect.
(…)of the role of law and rights as tools of political struggle for the oppressed.
Critical race theorists have argued that (…)racism has been a constant in the history
of the US and its legal system (…)far from being ‘post-racial’, US law and courts have,
in fact, perpetuated and legitimised patterns of racial domination and exploitation
(…)critical race theorists (along with feminist and Indigenous legal scholars) have
often mobilised storytelling and narrative as a way of elucidating injustice and as a
means of challenging what they see as male, white and middle-class aesthetic
hegemony in law.
Unsurprisingly, the unique experience of African Americans as descendants of
enslaved people has been central to the work of CRT, including to the ongoing
struggles for reparations.
CRT might be highly critical of both the US legal system and its legal academy, but at
the same time, it has generally remained within their confines (…) little
preoccupation with international or transnational legal structures and their role in
race-making and racial oppression.
In this respect, international law has generally been an afterthought for CRT scholars.
(…)This ‘blind spot’ has created a distance between CRT and critical international
legal scholars, including those affiliated with the TWAIL movement (…)These lawyers
were more often than not affiliated with postcolonial states’ governments, and they
combined legal critique with a contributionist ethos seeking to change the content of
international law and to reform its lawmaking processes (…) As efforts to reform
international law failed and postcolonial governments turned increasingly
authoritarian and abandoned their (diverse) visions of remaking the domestic and
international orders to benefit the oppressed and dispossessed, structural critiques of
international law became disassociated from governmental priorities.
Even though TWAIL encompasses a broad range of theoretical commitments and
sensibilities, it is held together by some core assumptions. First, TWAIL scholars
assert that imperialism, which is understood to involve not only direct/military
domination but also cultural hegemony and economic exploitation, has shaped some
core disciplinary concepts (…)Additionally, imperialism still exerts considerable
influence upon the doctrines, protocols and aesthetics of the field (…)Given the
structure of the international legal order, as well as TWAIL’s emphasis on lawmaking
from below and on the importance of institutionally diffused practices of
international lawmaking, adjudication occupies limited space within TWAIL’s canon
(…)even though questions of race and ethnicity are raised, there has been no
systematic interrogation of the intersections between international law, race and
empire.
Comment: The relationship between law and race has been explored by a quite deal
of scholarship. Perhaps two of the most prominent ones are the Critical Race Theory
(CRT) and the Third World Approaches to International Law (TWAIL). The former
grew out of the Critical Legal Studies (CLS) remarks of the subjectivity of law (law is
made from a group to a group) and argued that the United States law and
jurisprudence have served to perpetuate and legitimize racial exploitation. In this
sense, these theorists affirmed that law is a pattern of dominance and reinforced a
structure of exploitation. At the same time, they also conceived law and rights as
possible tools of resistance and political struggle for the oppressed.
Critical Race Theory undeniably advanced the studies on the role of law in racial
structures. However, its overemphasis on US national legal system have always been
a great weakness in the scholarship. As Saito (2020) points out, racial subordination
in the United States was born out of settler colonialism [describe the comment
bellow]. In this sense, the legal patterns that CRT identified as projects of racial
subordination were ultimately a world-system structure aimed at promoting
European dominance over all nations. By focusing on the US too much, CRT missed to
chance to evaluate how US legislation was influenced by and likely influenced racial
stratification in other countries, and to promote more diverse emancipatory roles of
law that would address racism, colonialism, and the inevitable intersection of them.
Consequently, the solutions provided by CRT to the dilemma of law passes off as
short-sighted. For example, international human rights have often been presented by
CRT scholars as better suited to emancipate subordinate racial groups in their
struggles against racism, particularly given the scholarship suspicion of US legal order
and judicial practice. The choice of solution is as understandable (given the routine of
US constitutional jurisprudence to impede advancements toward emancipation
through law) as questionable, given the intersection between international law and
imperialism. In fact, TWAIL scholars routinely connects key concepts of international
law, such as sovereignty, national states, and territories, to imperialism. According to
them, international legal order is deeply entrenched with colonialism ideals. That’s
why human in human rights has a specific gender and race, and therefore all the
protection around the structures of the field are limited to that strict audience.
Therefore, as mentioned by Tzouvala (2020), “the relationship between international
law and racism reveals itself to be co-constitutive as much as it is antagonistic.” If that is
so, it is hard to believe that such a paradoxical structure would be much different
from the insufficient remedies provided by national legislation in the US.
[The balance is in-between the national and international systems, and therefore in
the middle of CRT and TWIAL scholarship. “Colonialism diluted the delimitation
between the national and the international, and at a later point, shaped international law
in a way to offer remedies to the oppressed and exploited.” – and then talk about law in
latin America]

Saito has nonetheless been consistently interested in bringing together issues of

domestic racial subordination and international law and politics (…)Saito has argued
that it is both conceptually impossible and politically undesirable to distinguish
between US racism at home and abroad (…)both domestic and foreign policy in the US
have been premised on functions of ‘othering’, while domestic and international racial
subordination reinforce each other both ideologically and materially (…)scholarship
has indeed documented extensively how techniques of imperial policing that were
first deployed overseas during the Cold War later informed militarised and racialised
policing in the US, as well as the ways in which colonial warfare against Native
Americans at home has subsequently shaped US counterterrorism abroad (…)In
terms of law, this political distinction manifested itself through a deferential emphasis
on constitutionally protected civil rights (in the case of liberal anti-racists) and
internationally protected human rights (in the case of radical anti-racists). As Saito
observes: “These leaders recognized that, in many respects, international law provides
more protection for racial and ethnic minorities than does domestic law, particularly
regarding economic, social and cultural rights and the rights of ‘peoples’ to self-
determination.”
Saito joins a long tradition of critical race scholars in the US who insist on the
potential of (human) rights as emancipatory tools (…)her affirmation of human rights
arises out of her suspicion of US constitutional patriotism, which she sees as
fundamentally unhelpful to racially subordinated people in the US (…)The right to
self-determination is — provocatively — mentioned along with political and social
rights as a distinguishing feature of the international legal order and, in fact, forms the
backbone of the reviewed book’s engagement with international law.
However, TWAIL’s emphasis on the synergies between international law and
imperialism, as well as its suspicion that the figure of the ‘human’ in human rights is
 always already gendered and racialised, is in tension with the centring of human
rights law as a response to US racism
 On the one hand, the US federal government and its states violated the law in their
efforts to maintain the institution of slavery, often violating the sovereignty of their
neighbours in the pursuit of fugitive enslaved people. At the same time, international
treaties have enabled the US to perpetuate and defend its particular form of racial
capitalism — for example, through the provision of extensive protections to
intellectual property even if this causes thousands of Africans to die from AIDS. In the
realm of political economy, the relationship between international law and racism
reveals itself to be co-constitutive as much as it is antagonistic.
Comment: Saito (2020) hints this intersection by recognizing the intersections
between domestical racial subordination and international law and politics. Although
she focused her researching on the patterns of US racism that were replicated abroad in
the counterterrorism and Cold Ward policies, it is a clear indication of the blur between
the national and the international lines. Perhaps the best illustrator of this dynamic was
[law and latin America paper].
Settler Colonialism- The first nine chapters provide a detailed account of the relationship between law,
race-law race and political economy in the US (…)racism in the US cannot be separated from
the original sin of settler colonialism that structures its legal and political system at a
fundamental level.
 Saito notes that its distinctiveness as a social formation is that ‘settler colonists plan
not only to profit from but also occupy permanently the territories they
colonize’. This understanding of settler colonialism not as an event but as a structure
sheds a different light on the legal systems both of the US and of other settler colonies.
Struggles over land shape the legal system of these states, which need to perpetuate
the dispossession of their First Nations while also maintaining the collective amnesia
and continuous denial of the dubious legal foundations of state sovereignty (…)The
‘elimination of the native’ becomes a central function of the settler state, and the legal
system operates as a useful means towards this end.
Saito argues that the US state apparatus has used statist definitions of Indigeneity to
bring about ‘the numeral reduction of the population’, frequently co-opting Native
authorities in this process. More fundamentally, she suggests that, in its predominant
form, recognition transforms ‘hundreds of nations into a single “race”, which is then
categorised as a “minority group” within the settler body politic’. That is, recognition
in the US has been inseparable from the subsumption of Indigenous political, cultural
and legal subjectivity to the structures of the state or, in other words, has functioned
as a way of transforming inter-national relations into national (legal) affairs.
we can only understand the particular forms of racialisation of different groups in the
US if we examine the specific forms of labour and resource exploitation that were
enabled through this racialization (…)while the hyper-exploitation of slave labour
and, after the Civil War, of nominally free African Americans required the expansion
of the category of ‘blackness’ (…)Furthermore, the ‘one drop’ rule persisted well after
the Civil War, leading to the classification as black of individuals with remote African
ancestry who were, as a result, subject to slavery or, later, institutionalised
discrimination (…)reproductive capacity of black women became once again the site
of state intervention either through (forced) sterilisations.
Puerto Ricans, Filipinas/os and others did not cross the border, but rather the border
moved over them as the US expanded its territorial reach during the 19 th century
(…)One juridical technique that the book singles out is the exclusion of newcomers
from citizenship in ways that reinforce their status as precarious labourers who can
be ‘imported’ and expelled in accordance with the needs of their employers. Even
worse, a ‘presumption of foreignness’ constantly follows non-white US residents
regardless of their citizenship status. 
Having detailed the multi-layered character of racial subordination in the US, Saito
then explores the role of law as a tool for contestation and change (…)a careful
deconstruction of the conviction that ‘any vestiges of discriminatory treatment are
best addressed through legal enforcement of the Constitution’s guarantees of due
process and equal protection’ (…)Saito argues that US constitutional jurisprudence
has developed sophisticated techniques to foreclose the possibility of truly
emancipatory engagements with the law (…) a strategy based on the
US Constitution ‘would come at the cost of eliminating Indigenous identity and rights,
as well as the right of all other peoples to self-determination’. In other words, heavy
reliance on the Constitution reifies the settler state and ratifies narratives about its
adaptability and progressive outlook. This emphasis on the Constitution as a site of
struggle in turn relies on an understanding of past injustices as ‘inadvertent rather
than constitutive’.
 Saito acknowledges the limited effectiveness of international human rights law, but
she nonetheless insists that it can operate as a useful tool for the progressive re-
imagination of social coexistence.
stresses the availability of a broad range of remedies under international law and the
marked difference between this restitutive approach and ‘[t]he US legal system
[which] starts from the presumption that most legally cognizable injuries can be
redressed with money’. Saito juxtaposes this approach to the jurisprudence of the
Inter-American Commission and the Inter-American Court of Human Rights, noting
that both bodies have ordered a broad range of legal remedies for human rights
violations, including reparations, publication of the judgment, public
acknowledgement of responsibility and imposition on states of an obligation to
review their legislation and administrative practices in order to ensure future
compliance. For Saito, international human rights law provides much broader
protection to the oppressed in comparison to the US Constitution, a fact that partly
explains why the US courts have been so resistant to its influence.
 In the realm of legal theory, this book should be read alongside a growing literature
that rethinks the traditional distinctions between the ‘national’ and the
‘international’. 
Achiume has argued that past and present imperial links between the Global North
and the Global South necessitate a rethinking of migration and the laws that govern
it. More specifically, she has questioned the widespread assumption that the people of
the South are ‘political strangers’ in the North and therefore can only claim the right
to cross the border in exceptional circumstances (…)Adom Getachew has recently
provided a novel reading of decolonisation not simply as a process of proliferation of
the nation-state but also as a failed attempt to reconfigure the international (legal)
order (…)with sovereignty acting as a first step toward the reconfiguration of
international relations
Comment: Saito (2020) describes how racism in the US is linked to the structured
developed by colonialism. Those structures aimed at permanently occupying the
colonized territories and therefore used the legal system to dispossess Natives,
institutionalize and justify slavery and maintain precarious labor. In this sense, the
connects, for example, the statist definitions of Indigeneity that numerically restricted
aboriginal populations, the institutionalization of discrimination against individuals
with African ancestry and the presumption of foreignness that follows non-white US
residents to the original idea of settlement through colonialism and the persistence of
legal enforcement as replications of that project.
 Given all of that, Saito (2020) is rather suspicious of US national framework and
hopeful toward international human rights law. While acknowledging the limits of the
latter, she understands it as a more flexible tool to press for the reconfiguration of
social systems. She founds particularly promising the availability of remedies that
human rights provides (in special the inter-american system of human rights) and the
broader protection the documents of the system incorporates.
International Law  a major theoretical premise that keeps this rich book together is Saito’s refusal to
between race and turn race and racism into metaphysical, transhistorical concepts. Rather, the author
political economy goes to great lengths to show how specific forms of racialisation originate in different
modes of exploitation and dispossession. This move does not involve a reduction of
race to class but rather a clear understanding and exposition of the co-constitution of
the two.
(…)Even though Chapters 10 and 11 acknowledge the imperial origins of
international law, the field is generally portrayed as an unambiguous ally of racialised
peoples, rather than a double-edged sword that can enable significant victories but
also restrain or even antagonise struggles for meaningful racial justice (…)one of the
most exciting aspects of Saito’s project is her turn to the radical movements of the
1960s and 1970s, which did not struggle for non-discrimination in regard to the
existing status quo but rather put forward comprehensive emancipatory visions and,
in so doing, ‘identified themselves, to some degree or another, with national liberation
and anti-colonial struggles in Africa, Latin America, and Asia’ (…)The emergence of
influential Third World leaders in the stage of global politics gave movements for
racial justice both a blueprint for political action and useful allies in the international
scene.
It was in this context of transnational leftist euphoria and Third Worldist power that
international law and institutions emerged as sites of contestation and creativity. This
process of challenge and innovation involved a broad range of international legal
fields and concepts (…)The NIEO relied on the presumption that issues of poverty and
underdevelopment in the Third World were neither cultural nor endogenous, but
rather resulted from the persistence of unjust and exploitative relationships between
the metropoles and their formal colonies. Therefore, a radical restructuring of
international law was required in order to bring about a more just and equitable
international economic order (…)Explosive levels of sovereign debt rendered many
postcolonial, especially Latin American, states vulnerable to neoliberal structural
adjustment promoted by the World Bank and the International Monetary Fund.
(…)the political conditions that encouraged radical movements to put their faith in
international law and institutions have since been eclipsed. This does not at all mean
that internationalism is misguided, but rather that international law and institutions
are not necessarily the sites where this internationalism is articulated (…)Nick Estes,
a citizen of the Lower Brule Sioux Tribe, has recently provided a comprehensive
overview of Indigenous internationalism in Turtle Island, which involves working
with, against and beyond international law.
In other words, if national law is not the answer, international law is not necessarily
either. Saito is, in my view, right in pointing out the comparatively expansive
conceptualisations of racialised harm in international human rights law as well as the
breadth of remedies available to victims. As a matter of tactics, the advantages of
mobilising human rights to counter racism in the US seem significant. However, it is
not self-evident that ‘recognition of these legal principles can help us imagine and
implement liberatory options outside the constrains of a dominant narrative that
depicts current settler colonial realities as right, natural, and inevitable’. Rather, both
international law in general and human rights in particular can and have been
mobilised in order to reify and defend this dominant narrative, instead of challenging
it.
Rather, I am more interested in the contradictory role that international human rights
law has played in the challenging and reinforcing of white supremacy, including in
settler-colonial contexts (…)he benchmark for my evaluation is drawn from an
observation Estes has articulated regarding settler justice: ‘[it] can extract an
admission of wrongdoing, but cannot reorder the world or redistribute wealth,
especially land, back to its rightful owners’. In other words, I will interrogate if
actually existing human rights mechanisms and arguments have contributed to the
construction of a fairer international political economy and to the realisation of
substantive racial equality and liberation.
(…)My focus here is, however, more specific, and concerns the relationship between
international law (especially human rights), political economy and racial
subordination. Indeed, there are good reasons to doubt unambiguously laudatory
evaluations of the field when it comes, for example, to the end of white-minority rule
in southern Africa. This understanding of international law and human rights as polar
opposites of white supremacy ignores the role of human rights in either bracketing or
 directly reinforcing racial subordination in the aftermath of Apartheid.
Comment: Other elements of the point in the middle that I am referring to was drawn
by Global South leaders in certain points of global politics. Tzouvala (2020)
demonstrated how they attempted to contest and reshape international legal fields.
She points out their demands to restructure international law in order to eliminate
exploitative relationship between metropolis and formal colonies and promote
adjustments based on solidarity and equity. Ultimately, this signalizes a step further
in the fluidity between national and international orders. This is truth even
considering Tzouvala (2020)’s claims that the attempts of the leaders failed and the
political conditions that birthed their ascension faded away. She argues that, as a
consequence of this collapse, indigenous internationalism have been working with,
against and beyond international law. This can only mean that international law alone
cannot be emancipatory, but there might be a chance if social movements work with
and beyond it – or, as I argue here, in-between.
[In other words, human rights have been part of the colonialist project – and as
default in the machinery of structural racism – by reinforcing settler colonial realities.
Therefore, instead of opposing the dominant colonialist and racist narrative,
international law can and has been used to reify and protect it.

Human Rights and Root causes (Susan Marks)

Introduction For the political analyst Naomi Klein, however, the really important starting-point for
the international protection of human rights is in fact more recent, and it corresponds to
the time when what we now recognise as the human rights movement began to take
shape (…)The characteristic of this emergent movement that most interests Klein is its
commitment to neutrality and impartiality. That commitment arose in well-known
circumstances, which saw the enmeshment of human rights in Cold War divisions and
rivalries (…) Against that background, the idea took root that the new activist model
which was to provide the front line of international human rights protection could
enjoy credibility only if it remained strictly neutral, impartial and non-political (…)The
determination to steer clear of all political engagement meant that international human
rights work was restricted to documenting violations, and did not extend to considering
why those violations were ocorring.
(…) The report's conclusion is that these claims cannot be accepted; the repressive
measures were grossly disproportionate to any threat posed. But if the measures were
unjustifiable, presumably they were nonetheless explicable. On what basis? Klein
observes that the report makes no mention of the fact that at the same time as it was
engaging in systematic torture and disappearance, the junta was in the process of
restructuring the country's economy along radically neo-liberal lines. The report
contains long lists of decrees that violated civil liberties, but makes no reference to the
laws that led wages to be lowered and prices increased, no reference to the abrupt
abrogation of social protection and redistributive schemes, or to the deepening poverty
of ordinary Argentinians that was the result of these measures (…) In this connection,
she points up another limitation of the report. The conflict is presented as one between
the military and left-wing subversives. There is no mention of the US officials and
others who encouraged, supported and guided the junta's policies, nor any mention of
the transnational corporations and local landowners who stood to gain from them. Yet,
again, Klein maintains that 'without an examination of the larger plan to impose "pure"
capitalism on Latin America, and the powerful interests behind that project, the acts of
sadism documented in the report made no sense at all.
If during that decade the region was a laboratory for a new activist model, she recalls
that it was also a laboratory for a new economic model (…) But just as the economists
remained largely silent on the human rights abuses, so too the activists had almost
nothing to say about the economic transformations. According to her, the idea that 'the
repression and the economics were in fact a single unified project' is reflected in only
one major human rights report from this period, the Brazilian truth commission report
‘Brasil: Nunca Mais’ (…) 'Since the economic policy was extremely unpopular among
the most numerous sectors of the population, it had to be implemented by force.'
(…) by focusing purely on the crimes and not on the reasons behind them, the human
rights movement... helped the Chicago School ideology to escape from its first bloody
laboratory virtually unscathed'. At the same time, the new activist model was set on a
course that detached violations of human rights from the political, economic and social
contexts which make them possible and even rational.
(…) what got lost in the process was any sense that we may be con fronted not with
random, free-floating bad events, but instead 'planned misery'.12 Human rights
emerged as a set of 'blinders' that narrow our field of vision and prevent us from seeing
 (and hence from challenging) the wider scene.
Comment: One part of the scholarship, when analyzing the starting-point of the
protection of human rights movement in amidst the Cold War divisions and brutal
dictatorships, was marked by claims of neutrality and impartiality and an overly
preoccupation with documenting rather than explaining. In this sense, for example, the
movement would analyze the Argentinian repressive regime focusing on listing
violations, instead of understanding why the violations were occurring and under which
circumstances those occurrences were being allowed. As a consequence, the model
established a practiced based on which the human rights violations were analyzed in
detachment of the political, economic, and social contexts which created and
maintained the violation. In this sense, the human rights movement served a purpose
and reinforced a given ideology, as acted as blinders preventing the society from seeing
and challenging the wider scene.

Today the human rights movement does focus on the reasons behind violations. The
question of the causes, indeed the root causes', of human rights violations has become a
central and very conspicuous element of discussions within global civil society and,
perhaps most strikingly, the United Nations (…)It cannot now be said that the human
rights movement only documents violations, and fails to consider why they are
occurring (…)? If human rights were once a set of blinders, to what extent do they now
enable us to see?
Comment:
Root Causes Although root causes' are currently a prominent feature of the discourse of international
human rights, this was not always so (…)Root causes are the initiating phenomena in a
chain of causation (…) they are to be understood as the basis on which a given
circumstance rests (…) If you don't address root causes, we hear, you cannot hope to
bring about significant and lasting change (…) recently, root cause analysis' has
become associated with a particular method or approach to problem-solving in business
(…) so as to identify which causes would, if removed, eliminate a problem or prevent it
from escalating further.
The issue of causation has always had a place in discussions of internationally
protected human rights. As in all legal contexts, it is relevant to the determination of
responsibility - in this case, state responsibility - for failure to comply with obligations
(…) crimes - in this case, international crimes. Clearly, however, that bears primarily
on the question of whether a particular actor can be held answerable for a legal wrong.
It does not address the question of why that wrong occurred, how it relates to other
wrongs, or what its enabling conditions were. As distinct, then, from causation, the
issue of root causes is for the most part a recent theme of human rights work.
(…) The theme of root causes appears to have entered the human rights lexicon at least
partly in conjunction with debates about conflict prevention, and much discussion in
this context continues to revolve around the relation between human rights abuse and
armed conflict (…) In areas of violent conflict, human rights organisations routinely
emphasise the need to strengthen the national protection of human rights in order to
'address the root causes of conflict and tensions'. As indicated, however, the theme of
root causes is not just about what human rights abuse causes; it is also about what
causes human rights abuse.
(…) Instead the focus is on the interrelation of different human rights, including
different categories of human rights (…) attention is called to the links between
violence, on the one hand, and poverty, discrimination, marginalisation and social
exclusion, on the other.
(…) The study additionally demonstrates the way discussion of root causes brings with
it an emphasis on the issue of vulnerable groups. To elucidate what is causing abuses is
at the same time to shed light on who is most at risk of suffering those abuses. The
study observes that many vulnerable groups were identified, and that the need to
empower such groups was a recurrent theme of experts’ reports (…) Having pointed to
the link between poverty and violence, some mandate-holders put the issue to one side
for reasons to do with time and information, or because they considered that it was
appropriately addressed in other settings. Among those who did take it up, few took it
into account in formulating their specific recommendations.
Comment: This point of view is not in the least unreasonable. In fact, nevertheless the
current practice of the human rights movements to dwell on the reasons behind the
violations and focus on addressing the root causes of human rights abuses, the analyzes
provided by key institutions such as the United Nations are still marked by a distinctive
shallowness. The various reports and documents produced tend to identify the factors
that facilitate the occurrence of violations, but do not explain why the human rights
abuses occur and how they can be prevented. For example, the UN Special Rapporteurs
on the Right to Food, Olivier De Schutter, when examining the hunger and
malnutrition crisis that began in 2007 from a human rights perspective, connected the
 relation between the violation to the material conditions that explained the abuse (such
as aid conditionalities, trade rules, climate change, prices) and proposed mid-term and
long solutions. Indeed, the report offers flawless explanation for the violation, but it
does not account for the causes behind it. While explanations relate to the
manifestation of the violation in different scenarios, thus answering what is facilitating
the abuse, causes pertains to the material basis of the violation, and thus answer why is
it happening.
Three examples Example 1: arbitrary detention
People were routinely being held for acts that did not constitute crimes, after trials that
were manifestly unfair, and beyond the dates on which their sentences had been served,
and the Human Rights Unit wished to help the Afghan Government by proposing
effective measures for dealing with the problem (…)First, the formal system of justice
was in competition with informal systems and customary and religious practice that
lacked the same conceptions of procedural and substantive justice. In particular, the
presumption of innocence, the right of defense and the principle of equality before the
law were not well understood.
Secondly, the legal framework had significant gaps and inconsistencies. The right of
habeas corpus was not recognised or, insofar as it was recognised, it was not respected.
The criminal law was also insufficiently clear on certain key matters, including the
intersection with religious law. Thirdly, the formal system of law was still developing.
Police, prosecutors and judges often had limited technical knowledge.
Alongside each root cause, the report had a section entitled 'finding solutitions’. This is
plainly a compelling and well thought-out analysis, and it yields an agenda for action
that is both practicable and reasonable (…)The report tells us about competing
conceptions of justice under religious and customary law, gaps and inconsistencies in
the legal system, weaknesses in the administration of justice, corruption, impunity and
lack of accountability on the part of those in charge, and incomplete training and
capacity-building. But it says nothing about the context in which those problems arise
(…)? Are the gaps and inconsistencies in the legal system that permit detention for
running away from home causes of such gendered justice, or instead symptoms of a
deeper problem with its roots in socio-economic inequalities? Might not procedural and
administrative reforms, however desirable, simply alter the context, leaving the
problem itself to persist?
Example 2: Disaster relief
Government and civil society delegates likewise spoke of the tragedy that had befallen
Haiti, of its roots in persistent poverty and discrimination (…) ‘natural disasters and the
way in which international organizations responded to them had clear human rights
implications' (…)These considerations make it clear that, if nature brought the
earthquake to Haiti, the catastrophe it caused was decidedly man made (…)But she did
not - indeed, she could not ? mention the relation of that regime to the United States,
and nor did she say anything about the role of the 'international community', the
international financial institutions and the UN itself in carrying the policies forward
through structural adjustment, peacekeeping, 'technical assistance', and international
law (…)and shelter, and the inability of the Haitian government to provide these itself.
But they too remained silent on the lending and aid conditions that had forced
successive Haitian governments to cut public infrastructure, scale back the already
limited health service, and drastically reduce the protection given to local industries.
(…)and I raised the question of whether these were root causes of arbitrary detention,
or instead symptoms of a deeper problem with its roots in socio economic inequalities.
Here, in the Human Rights Council debate on the Haitian recovery process, the focus is
on socio-economic inequalities - the poverty and discrimination that placed those killed
in mortal danger, and rendered the government helpless to provide relief to the
survivors. Yet that poverty and that dis crimination are themselves depicted not as the
outcome of determinate forces and relations, including forces and relations that stretch
across the world, but as local dysfunctions and accidents of history.
Example 3: food crisis
In outlining each of these problems, De Schutter put forward proposals for overcoming
or alleviating it (…) He also proposed a new framework for global governance in the
area of food security (…) it takes account not only of abuses, but also of vulnerabilities.
Indeed, it goes beyond the special session in pointing to the historical and global
context in which those vulnerabilities arise or are sustained (…) Once again, however,
we need to ask to what extent this helps us to understand why such a violation of
human rights has occurred, and what it will take to prevent a recurrence (…) They
should do all those things, yes. But why don't they?
(…) it requires that patterns of vulnerability be mapped, and that governments develop
national strategies for ensuring food security and accord it priority in public policy
generally. On the other hand, there has also been insufficient monitoring of
 governmental action and hence insufficient accountability (…) There can be little doubt
that the right to adequate food can provide valuable orientations for institutional and
legal reform, and that improved monitoring and accountability would help in
challenging policy decisions relevant to food security. But is the problem really (…)To
answer those questions affirmatively is to suppose that there is no systemic or material
basis for hunger and malnutrition, nothing about the organization of the global
economy that generates food crisis, and does so not just contingently but necessarily, as
part of its logic.
Comment: SEE ABOVE.
Causes and effects These examples testify to the substantial and wide-ranging engagement of the human
rights movement with explanatory analysis (…) In two cases there has been an
emphasis on poverty, discrimination, marginalization and exclusion as structural bases
of human rights violations, and poverty was also touched on as a mediating factor in
the third (…) We have seen how the study of root causes is held to belong with the
distinctiveness of a 'human rights approach' to global problems, and also to form part of
what is demanded by particular human rights. Thus, for instance, '[a]n approach
grounded in the right to food requires that we address the root causes of hunger and
malnutrition’.
(…) In discussion of root causes, human rights institutions and officials have grappled
only partially and rather problematically with the question of why abuses occur, how
vulnerabilities arise, and what it will take to bring about change (…) In the first place,
the investigation of causes is halted too soon. Secondly, effects are treated as though
they were causes. And thirdly, causes are identified, only to be set aside.
(…) they are limitations in the extent to which those institutions and officials are able
to elucidate the root causes of whatever it is that concerns them, given the
arrangements within which they operate. That is to say, the issue is how the
international system of human rights protection, at least as currently configured, may
itself limit the possi bilities for revealing the reasons behind violations, and what that
tells us about the significance and prospects of root causes as a theme of human rights
work.
(…) By 'halting the investigation of causes too soon is meant that the analysis of causes
is not taken far enough back. So, for example, attention is directed at abuses, but not at
the vulnerabilities that expose people to those abuses. Or there is discussion of
vulnerabilities, but not of the conditions that engender and sustain those vulnerabilities
(…) Speaking more concretely, this often manifests itself in an emphasis on technical
problems and solutions. The implicit message is that, if only bad procedures, rules and
ideas were replaced and good ones adhered to, the miseries with which human rights
are concerned would go away (…)Yet, he observes, this obscures the 'political nature
of violence within modernity; it depoliticises the causes (and consequences) of
torture.46 Kelly stresses that this is not a deliberate strategy or philosophy' on the part
of monitoring bodies; it is simply a function of the nature of the tasks allocated to them
and of the conditions in which they work.
(…) the problem of halting the investigation of causes too soon manifests itself in a
privileging of the state as the primary agent of change (…)h state oriented remedies
[has the consequence that] all claims have to be channelled through the state. This
'domesticates more complex (and potentially more radical) demands on the social
structure, and, in the process, brings about the demobilization of social movements' and
other forms of emancipatory struggle (…) manifests itself in a tendency to concentrate
on causes that can be translated into remedial proposals, themselves capable of being
translated into bullet-point conclusions at the end of report (…) it discourages
engagement with the systemic character of abuses and with the contributions and
further possibilities of action by ordinary citizens.
(…) effects are treated as though they were causes (…) That is to say, do the authorities
detain people arbitrarily because they are corrupt, exempt from punishment and
otherwise unaccountable, or are they corrupt, exempt from punishment and otherwise
unaccountable so that they can (among other things) detain people arbitrarily? As noted
earlier, the possibility needs to be contemplated that arbitrary detention is not simply an
anomaly or dysfunction, allowed to continue through a failure of political leadership in
the country and by the international community.
(…) conducted at the level of background conditions, enabling frameworks and
overarching systems (…)From the perspective of those analyses, however, such
attempts to keep the focus fixed on individual decisions, policies and behaviours are
themselves bound up with the processes of systemic self-reproduction (…) One further
illustration of this reversal of cause and effect (…) racism (…) Racism, in Zizek's
account, is an effect of the deeper problem of exploitative class relations. To treat it as
instead the cause is to depoliticise that problem by representing it as one that can be
overcome through greater tolerance.
(…)The third limitation involves the identification of causes, only to set them aside.
 Specifically, it involves the disconnection of explanatory analysis from practical
proposals, and of strategies for change from the investigation of material conditions
(…) But while the connection between human rights violations and their socio-
economic context is vivid in Human Rights Watch's analysis of the two situations, it is
'almost totally absent from the recommendations ultimately put forward (…) On the
one hand, root causes are discussed, but not in a way that suggests the possibility of
actually doing anything about them. On the other hand, since they nevertheless remain
root causes, we are left to wonder whether the action that is proposed points to real,
historically effective conditions of emancipation or instead to 'fantastic' ones and, to
that extent, 'false promises’ (…)The result, he writes, is that 'the real life struggles for
social justice are waged despite human rights groups - not by or because of them.
Comment: Marks (2011) illustrates this insufficiency very clear. She affirms that
human rights institutions, when discussing root causes, halts the investigation too soon,
treats effects as causes and identifies causes only to set them aside. This system implies
that bad procedures and rules, if replaced, could halt human rights abuses. Moreover, it
narrows the discussions down to individual policies and behaviors that allegedly put
the identified incorrect procedures in place. Consequently, the human rights institutions
disregard systemic character of violations and fails to contemplate violations as part of
a political decision, rather than an anomaly. At the same time, the fail to address a
systematic abuse as systemic maintains the violation. From this perspective, the human
rights system does more to limit the possibilities of unveiling the causes of human
rights violations and correcting unfairness effectively than expand it.
Planned misery I want to consider what a different kind of explanatory discourse might look like (…)
but first, let us stay for a moment with the current discourse (…) By necessitarian
modes of thought are meant those which make it seem as though the world has to be as
it is. False necessity brings into focus the 'fatalistic myths' which mask the historicity of
existing arrangements and prevent us from grasping their contingency, provisionally
and hence, most importantly, their mutability. Underpinning this is plainly the long
recognised, but still crucial, insight that history is a social product, not given but made.
And if it has been made, then it can be remade different (…) On the other hand, another
cardinal principle of progressive thought is that possibilities are framed by
circumstances. While current arrangements can indeed be changed, change unfolds
within a context that includes systematic constraints and pressures.
That is the point of departure for the concept of false contingency. It reminds us that
things can be, and quite frequently are, contingent without being random, accidental or
arbitrary (…) We certainly do need to search out and expose necessitarian modes of
thought. But we also need to search out and expose voluntarist modes of thought,
which mask the systematicity, and in that sense necessity, of existing configurations of
forces and relations (…) it is historical necessity - the inherited logics, tendencies and
rationalities of social systems and the momentum associated with them. As such, it is
itself subject to change if and when those systems are changed.
Against this background, the limitations of the root causes discourse we have reviewed
appear as a form of false contingency. The systemic context of abuses and
vulnerabilities is largely removed from view(…) And if human rights violations are
random, accidental or arbitrary, then the prospects of putting them to an end become as
remote as though they belonged to the order of nature (…)False contingency is not a
matter of what people know or don't know; it is a matter of how they act (…)So the
point is not to clear up delusions, but to bring out the effects of action, including action
against better knowledge'.
An explanatory discourse informed by the concept of false contingency could be
fashioned in many different ways, but one is suggested by a phrase evoked at the
beginning of this article: 'planned misery’ (…)Rather, it denotes misery that belongs
with the logic of particular socio-economic arrangements (…) Planned misery denotes
the necessary suffering of those dispossessed, exploited and oppressed today.
How then might the concept of planned misery orient the analysis of why human rights
abuses occur? To begin with, it would encourage a per spective that is anti-moralistic.
In place of the question of what governments and others should' do, the central issue
would be why governments and others are doing what they are doing, and not doing
what they are not (…) At the same time, thinking in these terms would promote
attention to the relational character of social phenomena. The human rights movement
is structurally predisposed to focus on victims - they are the ones to whom the rights
violated belong (…) But very little mention is ever made of beneficiaries. Those who
(directly or indirectly) live off the practices and processes that victimise others have
been allowed to remain comfortably out of sight. Challenging that invisibility, the
concept of planned misery would insist on the question of how deprivation and
privilege interrelate. A further concomitant would be an emphasis on materialist
explanations - that is to say, explanations that account for phenomena not only in terms
of the ideas informing them, but also in terms of their connection to processes of social
 production.
But if we are fully to understand a situation, it is also important to delve deeper and ask
about the socio economic conditions within which those ideas were able to develop and
gain influence. So where abuses are currently explained with reference to bad policies,
laws and interpretations, the concept of planned misery would urge enquiry into the
material context of such harmful thinking.
Finally, an approach oriented to the concept of planned misery would have a
repoliticising thrust (…) Of course, explana tory analysis cannot itself specify the
forms of that action, but it can be under taken in ways that contribute more and less to
effective political mobilisation.
Comment: very important, see relevance for the thesis.

From “Calling in Black” to “Calling for Antiracism Resources”: the need for systemic
resources to address systemic racism
Introduction We identified what we had been experiencing as racial trauma or a psychological injury
caused by the experience of a racially motivated incident that overwhelms a person’s
capacity to cope (…)Second, suggesting that Black employees take time off to cope
implies that racism is an individual, rare event that should be managed external to the
workplace (Morgeson et al., 2015) instead of an overarching system that perpetuates
inequitable outcomes, treatment and experiences across society and in workplaces on
the basis of race (…)Situating police brutality within this definition of systemic racism
acknowledges the role that institutions play in maintaining a system of inequality. For
organizations, that is acknowledging how racism is operating internally and the lack of
resources they possess to create spaces for Black employees to reaffirm their humanity.
(…)to consider how organizations can address systemic racism as the root cause of
Black people experiencing vicarious racial trauma and everyday racism at work (…)we
explain how and why systemic antiracism resources are needed to counteract systemic
racism and offer specific resources for implementing antiracism in organizations and
academic research.
(…) their actions have not ushered in widespread change needed to counteract racism.
Comment: Scientists have identified the phenomenon of racial trauma. The authors
identify that racism is an overarching system that perpetuates inequitable outcomes,
which is irrevocably linked to the role of institutions and social structures. This
 systematic feature of racism demands widespread chance of resistance.
creating antiracism Unless the force of racism is met with direct countering forces, it will persist at its
resources in current strength and velocity (…) Although this statement is provocative, it further
organizations illustrates how the lack of self-reflection concerning one’s roles, beliefs and actions,
whether intentional or unintentional, maintains systemic racism (…) scholars have
directly argued that a “not racist” position “is a form of racist violence.
According to Kendi’s groundbreaking book How to be an Antiracist (2019), antiracism
includes a continual commitment to learning about racism, acknowledging racist
mistakes and creating equitable structures to replace systems that maintain white
supremacy and the marginalization of Black people and other stigmatized groups
(…)we do not believe that there is one antiracism best practice or resource guide that
can address the diverse ways racism manifests.
Adopt a long-term view for learning about racism (…)A residual effect of persistent
racism in society is the intergenerational fatigue felt by Black people that compromise
their physical and psychological health (…)r, including the emotional and
psychological distress of knowing that prior to this moment, most people “did not care”
about these issues (…)framing learning of antiracism as a never ending journey may
decrease the negative outcomes associated with reactive, knee-jerk responses that
constrict our thinking and actions.
adopting a long-term view of learning will reduce non-Black people’s need to absolve
themselves of racism by burdening their Black colleagues to validate their efforts and
educate them (…)which further exposes Black people to White fragility and
defensiveness.
This labor depletes the cognitive and emotional resources Black people need to do their
day jobs while simultaneously managing grief associated with the COVID-19
pandemic and ongoing police brutality (…) To more effectively support Black
employees and coworkers, individuals must use their own privilege to alleviate the
burden that racism has placed on Black people.
Embrace discomfort as part of acknowledging racist mistakes (…) Unfortunately,
diversity, equity and inclusion (DEI) work in organizations has promoted the comfort
of all persons as a desired goal, which prioritizes friendliness over engaging in crucial
work around dismantling systemic racism (Cortina et al., 2019). Promoting the feeling
of comfort at work does not facilitate cultural competence, but seeks to increase
 dominant group members’ tolerance of differences.
True safety necessitates the acknowledgement of racist actions that companies have
and continue to engage in. Essentially, to foster antiracism in organizations, dominant
group members need to become more comfortable with being uncomfortable (Ferdman,
2017). It is time that we all share the “burden of uncomfortability” that Black
employees experience on a daily basis; from enduring microaggressions (..). Embracing
discomfort as a resource will help reframe the goals of antiracist organizations from
feeling good to doing good.
Systematically assess how structures maintain white supremacy across organizations.
Kendi’s definition of antiracism calls for individuals to create equitable structures and
replace those that maintain White supremacy. To enact these behaviors, companies
must first identify structures that reinforce White dominance (…)that will enable
companies to identify deeply rooted ideologies that perpetuate rather than dismantle
systemic racism (…)The only way to address systemic racism is with systemic
solutions (…)they must be willing to interrogate taken-for-granted aspects of their
workplace and make systemic changes to their organizational infrastructure.
Implementing accountability metrics for merit-based pay and increasing transparency
of decision-making for managers are some solutions that counteract biases on a
systemic level (…) Systemic racism extends beyond individual behaviors to
discriminatory procedures, unfair policies and biased practices that result in inequitable
outcomes for Black people. Systematically assessing organizations’ infrastructures
offer numerous directions for creating equitable workplaces.
Comment: Racism is fed off not only ideology, but also roles, beliefs, and actions, be
it intentional or unintentional. At the same time, the system is continuous, which means
the only way of eliminating it is through consistent commitment and counteraction.
Silence or inaction only maintain racism. Some of the conclusions towards antiracism
measures developed to address racism in the workplace are also pertinent within public
policy designs: racism can only be crippled through unrelenting and never ending
strategy, acknowledge the discomfort that comes with systematic change, identification
of rooted ideologies that perpetuate racism and the adoption of systemic solutions and
evaluations of infrastructures and practices.
Implementation of Identify racism in the practice of research. It is imperative that we remind our readers
antiracism practice that academia is also an institution that creates and maintains racism (…)Learn the
in organizational history of systemic racism in organizations to inform current research (…)We
research acknowledge the significance of this work, but fear that the proposed problem (i.e.
biases) will not usher in structural solutions, but suggest that companies continue to
conduct ineffective unconscious bias training (Chang et al., 2019). Learning why Black
people are not represented in leadership unveils the reinforcement of structural
discrimination beyond individually held biases.
Consider how the framing of research questions reinforces racism (…)Asking why
Black people and other people of color are treated differently at work, for instance, has
an unstated assumption that the experiences of White people are normal and expected
(Bergman, 2019) without questioning why White people enjoy unearned privileges that
others do not receive (…) Our field also overly relies on the business case to justify
diversity programs and initiatives while ignoring and undermining the moral and legal
approaches to dismantling discrimination and racism within organizations.

Kimberlé Williams Crenshaw, Foreword: Toward a race conscious pedagogy in legal

education
Introduction Dominant beliefs in the objectivity of legal discourse serve to suppress the conflict by
discounting the relevance of any particular perspective in legal analysis and by positing
an analytical stance that has no specific cultural, political, or class characteristics. I call
this dominant mode "perspectivelessness."
many law classes are conducted as though it is possible to create, weigh, and evaluate
rules and arguments in ways that neither reflect nor privilege any particular perspective
or world view (…)When this expectation is combined with the fact that what is
understood as objective or neutral is often the embodiment of a white middle-class
world view.
The consequence of adopting this colorless mode is that when the discussion involves
racial minorities, minority students are expected to stand apart from their history, their
identity, and sometimes their own immediate circumstances and discuss issues without
making reference to the reality that the "they" or "them" being discussed is from their
perspective "we" or "us." Conversely, on the few occasions when minority students are
invited to incorporate their racial identity and experiences into their comments, they
often feel as though they have been put on the spot. Moreover, their comments are
frequently disregarded by other students who believe that since race figures
prominently in such comments, the minority students-unlike themselves-are expressing
 biased, selfinterested, or subjective opinions.
Comment: Legal structures hides its own biases and role in racial stratification through
the adoption of the discourse of the objectivity. Nevertheless, to be objective in the lens
of law often means to disregard the cultural, political, and classist institutional practices
reflected and reinforced by law that sustain structural racism and thus to leave them
unchallenged. In other words, it disregards that law is constructed behind a
consciousness defined partly by racial classifications. This context is maintained by
denial: discourses of objectivity veil, for example, how courts apply law in a way that
privileges the interests of specific groups over others. Bottom line, law embodies the
white middle-class world view and excludes minorities in the creation, interpretation,
and application of legislation.
The problem of Instructors create the conditions that lead to the objectification of minority students by
objectification narrowly framing classroom discussions as simple exercises in rule application and by
not giving students permission to step outside the doctrinal boundaries to comment on
or critique the rules (…) She would thus challenge her classmates' beliefs in the
perspectivelessness of law and reveal how discussing slavery within such narrowly
constructed boundaries immunizes the law from serious criticism.
This belief, however, is predicated on an erroneous view that white students-and indeed
the instructors themselves-are not also reflecting racialized views when they frame and
discuss issues. They accept the absence of an explicitly racial referent as evidence that
the doctrinal or substantive framework being discussed is objective and race-neutral.
However, majority as well as minority students view the world through a
consciousness constructed in part through race. The appearance of perspectivelessness
is simply the illusion by which the dominant perspective is made to appear neutral,
ordinary, and beyond question. As a result, while the perspectives of minority students
are often identified as racial, the perspectives of their majority classmates are not (…)
As long as other perspectives are obscured by the illusion of objectivity, the fact that
courts are making choices that privilege the perspectives and interests of some groups
over others will go unrecognized.
Comment: see above.
Subjectivity and the This pattern of pigeon-holing minority student responses into a "special testimony"
problem of minority category occurs when their comments are essentially limited to providing information
testifying on how it feels to live in a ghetto, to go to segregated schools, to be harassed by police,
or to risk being stigmatized by affirmative action. Instructors who until that startling
 moment have made no effort to create space for discussing how race shapes
experiences or the role of law in maintaining racial subordination (…)Yet to raise race
in this way imposes multiple burdens upon minority students. First, it reinforces the
view that racial differences and minority students' distinct racial experiences are
essentially peripheral to the main course of law. Such efforts to compartmentalize
racial experiences present racism as a series of individualized anomalous occurrences
rather than systematically connected to larger institutional practices and values which
are reflected in and reinforced by law. Presenting minority viewpoints in such
narrowly-framed and marginalized discussions ignores the possibility that these
insights might have some bearing on larger issues involving the role of law in
constructing societal relationships and on the appropriateness of discussing those
relationships in law school classrooms (…)Instead, the frame should be shifted so as to
illuminate the connection between racial subordination and the values and interests that
appear to be race-neutral or that are simply taken for granted (…)As an alternative to
asking how it feels to go to a segregated school, it might be more illuminating to start
the discussion with how property laws and the judiciary's interpretation of the
fourteenth amendment protect the current distribution of wealth and thus perpetuate
substandard schools.
Comment: see above.
Alienation of In addition to objectification and subjectification, a third category of minority
minorities in the classroom experience involves the alienation that is engendered by discussions that
classroom focus on problems, interests and values that either minorities do not share or that
obscure or overlook issues that are particularly relevant to minorities (…)Although it is
clear that many discussions do not involve race, it is also true that race is often
implicated in a range of ways even when it is not directly at issue and when racial
perspectives are not explicitly identified (…) For example, problems involving capital
gains taxes, or gifts and inheritances are apparently race neutral, but experientially,
tend to be more race specific (…)In addition to having different kinds of problems,
minorities may be more concerned about the racial implications of the topics (…) In
these and other discussions where the framework established by the professor precludes
the acknowledgement of the racial dimensions of certain topics, minority students may
be disinclined to actively participate.
The problem of Minority perspectives are devalued not simply in the discussion of doctrine, but in the
perspectivelessness construction of doctrine as well (…) First, the legal framework under which many
in antidiscrimination cases arise often determines whose perspectives are relevant and whose are not (…)
law minority perspectives are often excluded and dominant perspectives are privileged in
the legal inquiry (…) Moreover, dominant perspectives are not identified or associated
with any characteristics; the perspective is nameless.
These observations can been illustrated with a brief review of the tension between
competing frameworks for defining and remedying racial discrimination (…) Yet
minority perspectives are rendered irrelevant by some of the United States Supreme
Court's approaches in which the significance of the victim's experience of domination
is minimized by the search for an actor who intentionally and irrationally discriminated
against certain victims. The result of this search is that protection afforded to minorities
is limited.
Thus, the inquiry focuses on the beliefs, actions, and experiences of perpetrators. This
effort to ground antidiscrimination protection in the identification of a particular
discriminating actor might appear to be rational and noncontroversial in the absence of
a competing view (…) In the domination model the search for a particular perpetrator
is not as important as seeking to remedy the conditions which render the community in
question subordinate to whites.'" Such an approach relies on the reintroduction of
historical details and the inclusion of the victims' personal experiences and aspirations
which initially gave rise to the case. This domination model values the perspectives of
the victims and when those perspectives are introduced, the conclusions drawn from
the discrimination model make less sense. Unlike the discrimination approach, the
domination model privileges the perspective of the victim.
(…) Because the subjectivity of the perspective that is empowered by the doctrinal
framework is rarely perceived, the results that follow from privileging that perspective
are seldom regarded as being arbitrary, irrational or biased (…) If it is true that the
objectivity of legal analysis is grounded in the apparent perspectivelessness of the
dominant discourse, then the introduction of competing perspectives can destabilize
this apparent objectivity.
(…) legal analysis-like other modes of analysis-is grounded in a perspective. Since
perspectives are informed in part by experiential characteristics such as race, then race
often does figure into legal analysis (…)Formal neutrality that is often mistaken for
objectivity merely masks the particular characteristics of the empowered perspective; it
does not erase them.
The construction of a much of the silencing that is experienced in larger classrooms is not simply a matter of
critical and collective the constitution of the class, but of the nature and norms of the classroom discourse
pedagogy (…)The objective was to learn how to analyze an opinion that carries the air of
authority but which may nevertheless deny a reality that its readers feel they know.

Makau Mutua, Critical Race Theory and International Law: the view of an insider-
outsider
Introduction Although the last decade has witnessed the apparent triumph of markets and the
consolidation of Western domination of the globe, the rules of "international
governance" have been exposed anew as inequitable, oppressive, destructive and highly
hierarchically ordered by race (…)A cursory survey of CRT denies its universality and
reveals a myopia in terms of its origins, concerns, purposes and subjects. In fact, CRT
is so site and context specific that it does not immediately make any universal claims of
itself (…)But CRT has also developed a theoretical methodology that is useful in
studying the struggles of other subordinated groups (…)Two of these key innovations
by CRT-multidimensionality9 and intersectionality 1 0-are tools that debunk
essentialist constructions and allow for a more nuanced understanding of the use of
identities as social and legal phenomena (…)International law, on the other hand, is by
definition "universal," even though its authors have no doubt about its Christian and
European origin. Unlike CRT, which is an idiom of resistance and liberation,
international law has been a medium of conquest and domination (…) International law
is, therefore, Eurocentric in that it issues from European thought, culture and
experiences. This specificity denies international law universality (…) Unlike CRT,
international law explicitly holds itself out as universally human and thus, it
automatically and forcibly embraces all human societies.
Put differently, assimilation in international law is a sine qua non for civilization.
International "reality" suggests that to step out of international law is to in effect opt
out of "civilized" society and to become a "rogue" or "pariah" nation, state or society
(…)While CRT has an enormous emancipatory potential universally, international law
has largely been developed and deployed as a vehicle for advancing particular interests,
for the benefit of specific peoples, cultures and regions and, as a consequence, for the
detriment of particular interests, peoples, cultures and regions.
(…)This Keynote Address makes the point that international law has largely been an
instrument for fostering "unfreedom" and for enhancing and aggravating human
suffering, not for alleviating it. But it also contends that international law need not be
 an instrument for exclusion and exploitation, and asserts that it can and should speak to
more noble ideals.
The catalytic insider- Furthermore, matters of identity construction and the role of the law in creating social
outsider hierarchies are indigenous to precolonial Africa (…)I am part of an international elite
that personally benefits from the norms and structures of international law.
This is the history of international law that makes me feel as though I am an
afterthought to the discipline, as a "thing" that international law defines,
accommodates, exploits, tolerates and controls. It is "their" international law, a
discourse that calls and treats me like a savage and strips me of my dignity and
humanity.
Exploitation and repression, for the past five centuries, have been a global
phenomenon. 24 The response to them must also be coordinated on a global basis. In a
strange twist, international law may facilitate this process by default. The norms,
processes, structures and institutions that operate under the broad rubric of international
law are porous enough to allow a certain degree of mobilization. Such efforts may lead
to a better understanding of global hierarchies and inequities, and more refined and
sophisticated struggles to transform those oppressions.
Critical Race Theory CRT is a project of outsider jurisprudence. It concerns itself with social justice for
"outsider" groups, that is, groups that have traditionally been subordinated in the
United States (…( CRT has primarily dedicated itself to anti-racist and anti-sexist
struggles, and has served mainly to express the short comings of civil rights and social
reforms that signify formal, but not substantive change.
It seeks to take into account many of the variables that create powerlessness,
marginalization, debilitating and degrading social hierarchies and exclusion. In effect,
what it does is to universalize and globalize-by its holistic method-the struggles against
subordination. Its specific location belies the universal tools of analysis that it has
contributed to the disaggregation of complex social and legal phenomena. The
universalization that I refer to here is not, of course, geographical. It rather refers to
CRT's ability to acknowledge and account for many of the indicia of subordination in
the struggle against powerlessness.
International Law In contrast to CRT, international law is the system, the jurisprudence of "insider"
groups and dominant global interests (…) International law orders the world into the
European and the nonEuropean, and gives primacy to the former.
The fundamental principles of international law evidence this inflexible view of the
 discipline. Sovereignty and statehood are defined in such a way as to exclude or
subordinate non-European societies (…) The creation and re-creation of states, as well
as their recognition, has largely been a prerogative of the American-European alliance.
What the world has witnessed in the last five centuries is the universalization of an
international law that is particular to Europe and seeks not universal justice, but an
international legal order that erects, preserves and embraces European and American
domination of the globe.
Even the international law of human rights, arguably the most benign of all the areas of
international law, seeks the universalization of Eurocentrism. The human rights corpus
is driven by what I have called the savagevictim-savior metaphor, in which human
rights is a grand narrative of an epochal contest that pits savages against victims and
saviors.
TWAIL and CRT In other words, injustice has been globalized and internationalized on a scale hitherto
unprecedented (…) The Third World, which hosts most of humanity, needs
international law (…)As such, efforts must be directed at transforming the nature of
globalization, not reversing it. This, I believe, can only be done by reconceptualizing
and restructuring international law. In this task of reconceptualization, CRT offers
synergistic possibilities to TWAIL, the one movement that has the potential to lead the
charge for the transformation of international law.
First, TWAIL captures (…) central purpose is the exposure and elimination of norms,
processes and institutions that subordinate the Third World to the European West.
Second, TWAIL seeks to create conditions-both intellectual and material-that will
usher a new compact of international law. TWAIL, therefore, disavows white
supremacy or any other racial hierarchies and opposes all hegemonic doctrines and
practices that foster exploitation and the dehumanization of Third World cultures,
communities and philosophies (…)It is driven by the impetus to transform-from
within-Third World cultures, philosophies and practices that are inimical to human
development.
That mask cannot resolve the central contradictions frozen in the international legal
order: that of hierarchical relationships between the West and the rest, between the
European and the non-European. That façade is not sufficient to conceal the phantom
of sovereign equality between states, political and economic imbalances between
peoples and states, and the paternalism of imperial projects such as human rights that
foist a false consciousness on the world. As I see it, the CRT methodology of
 challenging form that does not deliver substance, of attacking all bases for
subordination, of fighting for a legal order that delivers actual social justice, must be
incorporated in the work of TWAIL.

Transnational articulations of law and race in Latin America: a legal genealogy of

inequality
Introduction The relationships between law and ‘race (…)On the positive side, law has been used as
instrument to fight racial discrimination 1) by the provision of accessible (criminal and
civil) remedies for individuals who have suffered direct discrimination or 2) by the
provision of preventive measures in order to obtain some tangible reduction in the
incidence of racial discrimination. Moreover, law can go beyond reactive and
preventive measures against racial discrimination and also be used 3) as a vehicle of
social engineering to counteract not only direct discrimination but also the social,
cultural, political and other factors which can underpin indirect discrimination and
racial disadvantage (…)On the negative side, law has been used to naturalize and
institutionalize racial discrimination and exclusion.
Until quite recently, Latin American countries widely assumed that state discrimination
against ethno-racial group (…) not in the region. For almost two centuries, a legal veil
of formal equality stimulated the intuition that Latin America had escaped the Janus-
faced articulations of law and ‘race’: some countries conceded citizenship to ethno-
racial groups as early as the independence; slavery was legally banned some few
decades later; de jure segregation systems (as in the United States or South Africa) did
not exist; anti-miscegenation or sterilization laws were a rare exception. But this
constitutional and legal idealism masked the deals that the political elites made to keep
their privileges and manage social hierarchies; this ultimately resulted in structural
discrimination: ethno-racial groups were de facto not identically situated with ‘whites’
and were legally ignored and socially excluded (…), in most Latin American countries,
the constitutional recognition of indigenous peoples or/and Afro-descendants as such
and their collective rights took place only at the end of the twentieth century.
The article aims to expose the crucial role that law played in the racialization of society
under colonial rule, and the continuities of such role in Latin America until the
twentieth century.
Comment: The potential of the law is twofold. In the struggle against structural racism,
law can offer remedies and help engineering institutional responses to respond to
 social, cultural and political manifestations of racism other than direct discrimination as
easily as it can naturalize and institutionalize racial exclusion. In Latin America, the
latter was more frequent than the former. Albeit having refrained from articulating
segregation legislation as conceived in the United States, law in Latin America played
a key role in the racialization of the society and the enforcement of coloniality.

Addresing Race as inequality is what ‘race’ is all about (…)was formulated to rationalize the operation of
transregional a racebased system of transatlantic slavery and the subjugation of Native Americans for
inequality – the the colonization of the ‘New World.’ ‘Race’ was an inter-continental category of
central role of law inequality with a hierarchical vision of humanity, configured as a mechanism to
naturalize domination by structuring unequal relations among the newly encountered
peoples and establishing a world hierarchy (…)the global diffusion of the fiction of
‘race’ and its real consequences in the development of a colonial regime based on
white supremacy and the enslavement, dispossession and economic exploitation of the
other ‘races’
elucidates how racialization and colonialism operated as interdependent processes and
the key role that law played. For the functioning of a global colonial empire based on
the natural supremacy of white Europeans, both parts, the dominant and the subjugated
peoples, must believe in its validity and legitimacy (…) colonists (…)could rule for
centuries only because the subjugated peoples internalized racial hierarchies and
deviant behavior was effectively punished (…)law and legal argumentation were
instruments to justify colonization and legitimate race-based inequalities (…)this
(almost obsessive) recourse to law is a major feature of the Iberian conquest and
colonization of America.
Comment: Race as an ideology aimed at rationalizing the transatlantic slavery and
subjugation of Native Americans within the colonization. This ideological was not
isolated. Rather, it was transregional and amounted to the establishment a regime based
on colonialism, white supremacy, enslavement and economic exploitation. In this
context, law sustained the regime. Legislation – and the structure behind it – justified
and legitimized colonization and race-based inequalities. As Góngora-Mera (2012)
formulated “colonists (…) could rule for centures only because the subjugated peoples
internalized racial hierarchies and deviant behavior was effectively punished”.
The lineage of Race the origin itself of the concept of ‘race’ and the resulting assumptions and beliefs
expressed in racial discourses in Latin America have been transregionally connected
 through law (…)racial identities were constructs produced and reproduced through
different forms of law.
Through the transmission of this way of thinking during the first stages of colonization,
‘race’ became foremost a matter of lineage and purity of blood (…)But the logic of this
binary racial stratification was broken due to miscegenation and the arrival of enslaved
Africans. Miscegenation derived in social stratification (‘castes’) based on percentages
of racial intermixtures between Iberian, Indigenous and African blood. When
miscegenation became more complex over the generations, the term ‘race’ changed the
meaning to become a morphological phenomenon -skin color, hair texture, etc. This led
to a wide range of color prejudices and discriminatory laws, which in turn legitimated
social hierarchies and progressively encouraged the belief in the biologic superiority of
whites.
In a Foucaldian argumentation, the colonization of Latin America illustrates the
normalizing power of law, as it naturalized the racial discourses surrounding the bodies
and defined the social relations and stratifications as common knowledge, as general
truth.
Comment: The use of law varied. Some of them ratified social hierarchies by
establishing different legal regimes based on race, such as the disqualification of black
africans from military services, prohibitions of black africans from wearing gold, silk
or perals, and forbiddance of marriages across races.
Transnational ‘inequality regime’ as a set of logics of stratification/redistribution classified as static
articulations of (caste societies), dynamic (class societies) or combined (class with racial/ethnic/gender
inequality regimes ascription); political, scientific, and popular discourses according to which individuals
or groups interpret and construct their own positions and that of others in society; legal
and institutional frameworks, policies, and models of conviviality in everyday life
(…)Racial hierarchies and other logics of stratification are, by definition,
transregional/transnational; ethno-racial discourses are globally shared, even domestic
legal frameworks and public policies are usually part of (or influenced by)
regional/global legal trends; and changes in conviviality are typically marked by
processes of transregional/international migration.
law may link to racial inequality in at least four types of articulations: 1) constitutive
(law enables or promotes racial discrimination and regulates racial discourses); 2)
prohibitive (law proscribes racial discrimination); 3) conservative (law has
normalization and legitimation effects over the logics of racial stratification); and 4)
 corrective (law is used to reduce/counteract racial discrimination and to protect the
victims).
it rather adopts a relational, interdependent view on the emergence, maintenance and
transformation of inequalities. It assumes that national patterns of social exclusion are
influenced by domestic legal frameworks, but such frameworks are usually consistent
with other interrelated legal frameworks at different levels beyond the state (regional,
transregional, global); such regimes are mutually dependent and may directly influence
state behavior and exert a transnational disciplinary power oriented for normalizing
differences.
Likewise, the legal developments are transnationally articulated: the constitutional
adoption of the concept of citizenship and its extension to the ‘castes’ by the 1810s
cannot be understood without consideration of the legal discrimination in Haiti and the
United States, the Spanish attempts of legal inclusion in the Constitution of Cadiz or
the English laws that prohibited the transatlantic slave trade. The following section will
analyze some of these transnational articulations until the 1990s.
Comment: As racial hierarchies are globally shared, national legal frameworks are
influenced by regional tendencies. Góngora-Mera (2012) articulated the thread
connection laws pertinent to the understanding of racial structures in Haiti, the United
State, Spain and the United Kingdom. This thread is not innovative. It calls back to
Quijano’s (2000) understanding that colonialism solidified the European dominance
over the all regions and therefore shaped a world-system. It is this global perspective
that allows the interchangeability of customs and practices across different nations
(they were under the same homogenous regime). In this sense, legal frameworks in
different contexts were often similar and mutually dependent. This is what led him to
argue that the same transregional legal regime may be used to influence state behavior
and exert power aimed at reversing structural racism.
Inequalitiy regimes (…) once the veil is pulled away, it is patently clear that the ‘protective’ legislation in
in latin America favor of ethno-racial groups (the ‘positive’ side of Law) has been used to hide a reality
from the 17th to the of social exclusion and racial discrimination, following an inveterate tradition of
20th century noncompliance (…)which forbade the maltreatment of indigenous people, or the Royal
Instruction of 1789, the first Spanish regulation designed to diminish cruelty against
blacks) were systematically ignored and never truly enforced in the Americas.
Comment: Historically, protected Latin America legislation concerning ethno-racial
groups have been put forward. This does not mean, however, that the continent was a
 beacon of progressiveness. The existence of the law was nothing but a veil to hide the
consistent reality of social exclusion and pattern of noncompliance and
nonenforcement.
transregional the Spanish Crown enacted protective measures to impede annihilation of the Indians
articulations of law (…)As one could expect, these norms received strong opposition from the
and race in the caste encomenderos (…) In order to avoid (or in some cases, contain) rebellions, several
regime colonial authorities did not enforce this legislation, establishing a custom of formal
(almost ‘ceremonial’) subordination to law while applying it selectively, according to
the interests of the local elites (…)which in turn created a widespread perception of law
as an instrument that impose duties only for the poor while guaranteeing the property
rights of the elites. As a matter of fact, the encomienda system was effectively
abolished only 250 years later.
A similar picture of noncompliance arises from the ‘protective’ provisions in the
legislation for African slaves, but with the aggravating circumstance of its delay
(…)One hundred years later, strongly inspired by these and other provisions of the
Code Noir, Spain finally developed a comprehensive and codified legislation for
African slaves in its colonies (…)Although African slaves would receive according to
this Spanish law a milder treatment in comparison with the French and other European
colonial laws, protective measures were widely ignored on the ground. The Real
Cédula was greeted with firm opposition by slaveholders throughout the Hispanic
colonies (…), who used their influence in the local cabildos to force a declaration of
acknowledgement of the Royal Instruction but with suspension of its legal effects.
Another interesting feature of the relation between law and ‘race’ in Latin America in
the caste regime should be mentioned: the legal means to purchase a ‘higher’ racial
status (….)allowing certain individuals of the castes with mixed African and Spanish
ancestry to purchase ‘whiteness’ to access to the social privileges of the white status.
This can be seen as a legal strategy for upward mobility in which the racial identity was
negotiated, and exemplifies that law not only could naturalize race-based inequalities
and make social hierarchies static; law could also create exemptions and allow vertical
movements within an established racial hierarchy. While this reveals that law can
create mechanisms of inclusion even in contexts of strict racial hierarchies, it also
reinforces the racial patterns because it excludes those who remain in the lower racial
levels.
four major articulations between law and ‘race’ in Latin America in the caste regime
 may be emphasized: 1) a widespread practice of noncompliance with protective
provisions while formally honoring strict adherence to the letter of the law, hiding the
real situation of ethno-racial groups under the appearance of legal protection; 2) the
consequent tradition of unequal application of law according to the addressees of the
norms, with strong correlation to racial hierarchies; 3) the legal normalization of
transregional and domestic race-based inequalities; and 4) the legal inclusion/exclusion
of ethno-racial groups, in line with the political interests of the elites.
Comment: From protective measures enacted by the Spanish Crown to prevent the
annihilation of the Native groups to the ones enacted by France concerning African
slaves, the pattern remained the same: the colonial powers adopted leniency as a tool
and thus refused to enforce the legislation. Consequently, the most vulnerable groups
remained unprotected, and the former colonies established customs of selectivity
concerning the application of law depending on the social and racial status. Another
feature of the relation between law and race was the practice of purchasing higher
racial status through the negotiation of the racial identity. In this context, law allowed
individuals to gain ‘whiteness’ status and therefore social privileges. Legislation, then,
naturalized race-based inequalities, as it either institutionalized racial hierarchies (the
status of white or nonwhite defined one’s access to goods and services) and created
possibilities of mobility within the established hierarchy based on race.
Those arrangements indicated that when it comes to racial hierarchies in Latin
America, Law acted through hindrance or normalization. Thus, legislation hid the real
situation of ethno-racial groups through the enact of ineffective legislation or the
unequal application of law, or normalized racial hierarchies and transregional race-
based inequalities.
From the Caste The Latin American independence movement was closely linked with a transregional
Regime to Racist chain of events, including the American and French revolutions (…)But all these
Nationalism: events did not change the global inequality regime based on white supremacy; with the
Ruptures and exception of Haiti, the rebellion was not planned as a rupture with the established racial
Continuinities in the stratification; it was rather a transition from an externally-driven to a nationally-driven
articulations of law racist regime. Indeed, the independence movement was dominated by the white creole
and race after elite, whose national project was based on decolonization while maintaining the social
independence status quo.
(….) one of the first steps in consolidating state power was the creation of a national
identity through the proclamation of constitutions and the enactment of legislation. In
these efforts of nation-building by law, their elites were influenced by European
models (…) But European models were not capable of responding to the challenges of
the principle of equality before the law under the conditions of postcolonial societies,
especially due to the comparative differences in demographic terms. For European
nationalism at the end of the eighteenth century, homogeneity was a prerequisite of
nation, which was incompatible with the inherited caste divisions of colonial Latin
America (…) the pro-independence elites based the national liberal project ‘on their
self-perception as a Western, Catholic, racially European people, from which Indians
and Negroes were excluded.
e. For the regulations on nationality and citizenship (key concepts for legal inclusion in
the French revolution), they looked at the only two colonies that by 1810 have achieved
their independence in the Americas: the United States and Haiti (…)US Constitution
did not expressly prohibit racial discrimination; it did neither require the immediate
abolition of slavery nor limit its cruelty providing any kind of rights for slaves.39
Moreover, it left the issue of citizenship unresolved (…)Thus, from its origin, the
United States excluded non-whites from the community of equals in rights and the
privileges of citizenship (…)On the other hand, the 1805 Haitian Constitution excluded
most whites from the benefits of citizenship and owning land (…)and declared all
citizens ‘black (…)This new order implied a striking challenge to racial relations
throughout the Americas because both royalists and creoles feared that the successful
slave rebellion in Haiti would inspire similar revolts in their territories.
The US and Haitian constitutions were foreign laws with indirect influence in Latin
America; other two regulations with transnational effects that directly influenced the
subsequent regulation on ‘race’ and citizenship in the incipient states shall be also
mentioned: 1) the Slave Trade Act of 1807, a British law that prohibited British vessels
engaging in the slave trade, which was determinant for the progressive prohibition of
slave trade in Europe and the Americas; and 2) the 1812 Constitution of Cadiz, where
the concepts of national sovereignty and citizenship were extensively discussed among
peninsulares and representatives of overseas Spanish dominions (…)The Constitution
of Cadiz (…) incorporated a wide range of individuals into the concept of Spanish
nationals, including former slaves (Article 5) but it distinguished ‘nationals’ from those
who are considered ‘citizens’ and, therefore, holders of the right to elect and be elected
(…)That means, criollos would maintain their political privileges vis-à-vis indigenous
and blacks, as citizenship was restricted to them and to those peninsulares living in the
Americas; but free blacks would have a better legal status under the Spanish
Constitution, from súbditos of the King to nationals of Spain.
Based on the double influence of the U.S. and Haitian experiences, and internationally
restricted by the legal responses of Great Britain and Spain to the shifting patterns of
power in Europe and the Americas (…) Latin American countries (…) when regulating
‘race’ and citizenship: everything was changed so that everything stayed the same
(…)Due to the successful opposition of slaveholders and other economic elites, slavery
was legally abolished only by the mid-nineteenth century in most independent Latin
American countries, but in some of them there were very early steps (…)Nevertheless,
the intentions behind these steps were quite similar throughout the region: criollos
wanted to gain the military support of the ‘castes’ for the independence (or to reduce
the royalist slave recruiting) and to avoid a Haitiantype rebellion. Consequently, legal
inclusion through nationality, citizenship (including in some cases the right to vote),
and the promises of freedom were usually conditioned to the participation in the wars
on the side of the criollos.
what is remarkable here is that the regional adoption of the principle of citizenship and
equal application of law without racial distinctions, parallel to the progressive abolition
of slavery, represented a radical rupture with the caste regime that should allow a
generalized upward mobility, not only for the reduced members of disadvantaged
groups that could use the independence wars to push for concessions from the
contending parties, but for all members of the new political communities. The
constitutions and legislations of the new republics were based on the principle of
formal equality and political inclusion of indigenous and blacks and thus did not follow
the discriminatory legal paths of the United States or Haiti, but this difference basically
served to give the appearance of inclusion without any deliberate legal or policy
intervention to counteract race-based social stratifications (which can be named as
‘passive indifference’). In the absence of special measures in favor of disadvantaged
groups, this legal veil instead covered the persistence of structural discrimination. (…)
possibly contribute to keep the racial status quo (…)ethno-racial groups were kept out
(or left out) through other legal measures that reinforced race-based hierarchies (‘active
indifference’ or ‘invisibilization’) until the end of the twentieth century.
Comment: The analysis of the relation between Law and structural racism in Latin
America have two clear benchmarks: prior and after the independence movements.
However, both periods were marked by a transregional chain of events, that
 encompassed the uniform practices conducted by the colonist States throughout the
region and the replicated legislations enacted in the national states after independence.
The independence prompted a new effort by the rising nation-States: the creation of a
national identity. However, because the independence movements were dominated by
white creole elite and driven by the maintenance of social status quo and racist-regime,
much of the efforts followed European models of legal structure. Those models
replicated a national project based on western, catholic, and white Europeans, and
therefore excluded Natives and afro-descendants. Moreover, the legislation and
structures behind it, based on European ideas of homogeneity and nationalism as they
were, proved incompatible with the divisions established by colonialism in Latin
America and crippled the application of the principle of equality under the conditions
of post-colonial societies. In addition, the region was generally influenced by patterns
created in the United States and Haiti concerning nationality and citizenship: on one
hand, the United States practice of silence (the Constitution did not prohibit racial
discrimination, slavery or definitely declared all individuals as citizens); on the other
Haitian Constitution declared all citizens black. The aftermath of the duality was, in
Góngorra-Mera (2012) words, that Latin American countries when regulating race and
citizenship changed everything so that everything stayed the same.
Therefore, the countries adopted the principle of equality before the law, refrained from
restrictions of citizenship based on race and prohibited slavery. Indeed, they stepped
away from the two opposite radical patterns adopted in the United States and Haiti.
They did not adopt silence neither radicalization. The chosen path was a certain
neutrality – States included provisions establishing equality in a region marked by
selectivity and noncompliance without mention of legal intervention to correct the
already existent racial stratifications. According with Góngorra-Mera (2012), “in the
absence of special measures in favor of disadvantaged groups, this legal veil covered
the persistence of structural discrimination”. By doing so, these stratifications were
maintained.
From Racist (…) racism emerged by that time in all Western countries as the ideology of
Nationalism to imperialistic policies; it absorbed and revived all the old patterns of race opinions and
Mestizo Nationalism: progressively gained the assent of public opinion as a full-fledged ideology (…). White
legal attempts of supremacy even received the recognition of the scientific discourse; in Foucaldian
blanqueamiento and terms, this ‘truth’ was linked in a circular relation with the powers that produced and
invisibilization
sustained it.
In Latin America, the global diffusion of scientific racism consolidated racist
nationalism. Legal attempts to ‘ascend’ in the global racial hierarchy stimulating white
immigration were common throughout the region (…) Equality and inclusion in the
state presupposed homogenization –in the most ideal case, according to Western
European racial patterns-. Thus, several Latin American states adopted legislation for
the promotion of immigration of ‘desirable races’ (especially white agricultural
colonists) and discouraging (or even banning) immigration from certain nations or
regions (…)the United States inaugurated a diffusion process of anti-Chinese
legislation throughout the hemisphere, with particular influence in Cuba, Mexico and
Central America (…)Analyzing immigration norms from 1850 to 2000, Cook-Martín
and Fitzgerald found that at least nineteen of the twenty-two independent countries of
the hemisphere by the late 1930s discriminated against Chinese immigrants;
discrimination against people of African origin or black immigrants was slightly less
common (observed in thirteen of the twenty-two countries), but peaked at the same
time.
From the second half of the nineteenth century to the World War II, provisions that
restricted African and/or Asian immigration and encouraged immigration of ‘desirable
races’ were common in Latin America (….)Legal discrimination against non-nationals
construed an externally-oriented inequality regime in the region, but it indeed
reinforced the logics of racial stratification at the domestic level as it was built on the
assumptions of white supremacy and the transitory nature of the relations with
‘undesirable races’: their numbers would comparatively decline vis-à-vis white
population through immigration or they would become extinct through more direct
policies like mass land expropriations, armed subjugation and ‘ethnic cleaning (…)All
of this was consistent with the international regime after World War I, which testified
the Western reluctance to recognize the unlawfulness of the global racial stratification
due to the effects of a binding proscription of racial discrimination in its colonies or
even within its own segregation systems.
Since the 1930s, due to meager success in attracting white immigrants, some Latin
American countries began to reorient their racial discourse: homogenization would be
achieved through intermarriage with the Catholic and European-oriented ‘white’
population (…) mestizaje trend that was also associated with certain idealization of the
indio and the mullatto (…)Though it implied criticism against the exploitation of
ethno-racial groups and some vindication of their cultural rights and political
institutions, nevertheless the mestizaje ideology was a product of the rise of the mestizo
middle classes to power, and used ultimately by these new mestizo elite to its own
benefit, forcibly ‘modernizing’ those subjects that were considered primitive/backward
(…)mainly concerned with assimilation into the white-oriented ‘national’ culture and a
paternalist inclusion to formal citizenship.
A major change in the global inequality regime occurred when the status quo of
European domination was broken with the Second World War. Great powers that
followed an imperialist project extensively based on white supremacy were finally
willing to acknowledge the unlawfulness of racial discrimination and introduced
antiracism as one of the major purposes of the emergent international human rights
system in Article 1(3) of the United Nations Charter in 1945.53 However, the veil of
mestizaje was so successful that even the nascent human rights system believed the
myth of ‘racial democracy,’ and the region (particularly Brazil) was highlighted as a
positive example for race relations.
The post-1945 anti-racist international agenda was focused on the consequences of the
Holocaust in Europe and the Middle East, the persistence of institutionalized
discrimination in the United States and South Africa and the changing power relations
derived from the decolonization of Asia and Africa (cf. Lauren 1988; Füredi 1998). In
the meantime, Latin America could maintain its intentional ethno-racial invisibilization
and the assimilation project, although with diverse adaptations during the authoritarian
wave of the Cold War. During these dictatorships, precarious legal protections were
restricted, and in several cases ethno-racial groups were subjected to persecution and
annihilation (…)The international community tended to be indifferent to these actions
because the international anti-racist regime was conditioned to the strategic interests of
the USSR and the US.
Once the authoritarian regimes were overthrown, some countries proclaimed new
constitutions that established general state obligations to protect ethnic groups.54
However, these provisions maintained the paternalist approach vis-à-vis ethno-racial
groups (focused on protection rather than autonomy) (…)groups, it did not recognize
the very multicultural make-up of society as a whole.
Latin American countries espoused a doctrine of racial harmony at the same time that
they established a regime that meant to serve as the legal means of implementing a
process of racial and cultural assimilation (…) ethnoracial groups were made invisible
 in the national statistics and consequently also in the public policies, which reinforced
the colonial legacy of structural discrimination.
Comment: The duality between discourse and practice even within law is another
distinctive feature in Latin America. While most of the countries included the formal
equality principle, prohibited slavery and formally recognized citizenship for all
people, therefore proclaiming inclusiveness, many adopted legislation for the
promotion of immigration of desirable races and the discouragement of immigration
from certain nations. In this sense, for many decades, Latin American States restricted
African and/or Asian immigration and welcomed European migrants. Following the
success of those policies, the States reoriented their strategy towards a rhetoric of
mestizaje ideology. Although the meaning and extent of this ideology will be explored
in the next chapter, it is important to highlight that it served to a process of racial and
cultural assimilation that contributed to the invisibilization of ethno-racial groups and
thus their marginalization.
In this sense, the patterns of hindrance and normalization of racial hierarchies. The
legislation that offered some assemblance of inclusivity hid the true social
arrangements and social exclusion of racial groups, often reinforced by marginal
legislation that normalized racial stratification.
Conclusion As a technology of power, law was essential to the European colonial project in Latin
America: it naturalized multiple forms of racial discrimination and provided legitimacy
of exploitation and disciplined labor.
This approach elucidates the chronological and epistemic correspondence between
different legal projects of racial stratification (e.g. colonization, slavery, nationalism,
imperialism) in different world areas. While racial discourse in law is discontinuous in
the transition from one regional regime to another (…), there are several continuities in
functional terms (due to the unchanged global discourses of white supremacy until
1945). Such persistence of constitutive and conservative articulations of law and ‘race’
for normalization of difference and invisibilization of ethno-racial groups at the
national level needs to be read in conjunction with regional, transregional and global
regimes of inequality operating at the same time.
The legal transnational approach proposed here was built on three elements: 1) the
characterization of ‘race’ as a transregional inequality; 2) the introduction of regime-
thinking in order to emphasize the centrality of law for the configuration of racial
inequalities and to depict transnational interconnectedness between domestic, foreign
and international norms as factors conditioning social hierarchies over a long period of
time; and 3) the consideration that, though regime shifts, regional inequality regimes
may present continuities that depend of transregional and global conditions (global
stratifications, transnational discourses on ‘race’/ethnicity, international legal
frameworks, etc.).
Law and race in Latin America: from the general noncompliance with the law and its
unequal application according to the addressees of the norms, to the legal naturalization
of race-based inequalities and the legal exclusion/invisibilization of ethnoracial groups.
The promising egalitarian rules introduced during the independence wars were
challenged by conservative forces that gave continuity to the global exclusionary order
based on white supremacy; in this way, the region also followed the global trend
imposed by scientific racism in the second half of the nineteenth century and
established severe restrictions on migration, which in turn reinforced the logics of
racial stratification at the domestic level; and it also successfully covered racial
discrimination under the legal veil of formal equality and the racial veil of mestizaje
during most part of the twentieth century, while adhering rhetorically to the new rules
of international anti-discrimination law.
it may be reasonable to make these links explicit and keep them in mind if we do not
want to limit our ability to design policies that change these arrangements and to
reform regulations that are not coherent with the objective of reducing ethnic and racial
inequalities
Comment: Law was used to naturalize racial discrimination and legitimize
exploitation. This movement had variances depending on the country, but generally
followed the same patterns of regional, transregional and global regimes of inequality.