An international NGO in consultative status with the United Nations
The Supreme Court June 24, 2013 decision to send the case on the University of Texas at Austin’s use of race in admission decisions back to a lower court has failed to uphold Affirmative Action, in what might be seen as yet another attempt by the American elite to legally restructure America as to reinforce its hegemonic domination of domestic and foreign policy, while increasingly disregarding international legal norms, treaties and customs.
Under the Convention for the Elimination of All Forms of Racial Discrimination (CERD), Affirmative action represents an international legal norm. It specifies in Article 1.4:
Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
Statistical evidence is widely available to demonstrate that the objectives for which affirmative action was originally instituted have not yet been achieved, and that accordingly affirmative action (special measures) is still required. As it relates to college admissions, in states that have banned affirmative action, prominent public universities have tended to enroll fewer African American freshmen. As for other ongoing social inequalities, the PEW Research Center in July 2011 found that from 2005 to 2009, the inflation adjusted median wealth fell by 16% for White Americans but 53% for Blacks. By 2009 the median net worth for White households was $ 113,992 while for African Americans it was just $ 5,677. In real terms, African Americans, as a collective, have lost over one-half of their total wealth in a mere five year period. Such evidence, which is reflective of the profound historic and systemic effects of racism and discrimination, contradicts the attempt to portray contemporary America as a truly “color blind” society.
Let there be no illusions: this ruling portends the death of affirmative action by a thousand cuts. Paradoxically, the movement towards a policy whereby government and law become “color-blind” is reinforcing a de facto reality on the ground that African Americans, collectively, will remain unassimilated on an equal status basis into the dominant institutions of America.
The trajectory of the Supreme Court ruling against affirmative action was confirmed shortly thereafter by a Supreme Court ruling on the Voting Rights Act which, as widely agreed, would further limit African American access to the polls already curtailed by mass incarceration of African American males in particular.
For African Americans, an agenda to return them collectively to the “back of the bus” -- even as Black faces currently hold some of the highest positions in the land – is distinctly emerging, reminiscent of how neoliberal agendas have been imposed on states as a whole by ostensibly progressive governments.
WHEN ONE DOOR SHUTS, ANOTHER OPENS
At the recent IHRAAM 2012 Chicago Conference, “From Civil Rights to Human Rights and Self-Determination?” leading African American opinion makers were already exploring the potential that the international legal paradigm of self-determination might hold for African American collective development within the U.S.A. International law professor Francis A. Boyle, also an IHRAAM Director, laid out the case for African American right to self-determination. He did so by legally articulating nine (9) charges against the U.S. in relation to its historical policies towards African Americans which to date, have failed to be mitigated by its brief flirtation with affirmative action. When peoples entrapped in states under majority domination are not provided with the institutional and other means to ensure their equal status, and when the states concerned have a historical record of behavior towards them entailing genocide and crimes against humanity, such peoples may legitimately pursue their right of self-determination.
African Americans options might best be understood in terms of three approaches: a) unequal assimilation (the process presently underway); b) self-determination including independence; or c) some intermediate collective institutionalization which they might self- organize to collectively determine and negotiate with the US government.
If African Americans view themselves as a people and wish to assert their rights as such, then the following provisions of common Article 1 of the International Bill of Rights is applicable to them:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
If African Americans wish to assert their rights as national minorities (distinct ethnic/religious groups residing within multinational states which were present at the time of the state’s coming into existence), then the most extensive of the panoply of minority rights might be pursued. As demonstrated in customary international law – and indeed as the US is fully aware and tries to institute when it suits its foreign policy interests as it relates to the restructuring of other multinational states – there are many ways for peoples or nations to be incorporated into multinational states such as the US which provide them with policy and rule-making rights that are internationally recognized, and could be normatively constitutionally enshrined.
These are issues that were raised in the above-mentioned IHRAAM Conference, the published proceedings of which are available from IHRAAM. This book establishes that African Americans are a People with a Right to Self-determination under international law. African Americans are not just another minority limited to the constricting bounds of the present United States Constitution and U.S. Civil Rights Law that has just been significantly tightened during the past week by the US Supreme Court. It provides African Americans with a new, international Direction to go in light of these twin domestic set-backs.
Overturning the monumental Brown v. Board of Education will be the next objective of the U.S. Supreme Court. In light of such consequential actions, African Americans should methodically explore the differences between the above-indicated options. This book is designed to help them to do that.
As the American economy worsens, discrimination deepens, and a plethora of constitutional amendments are proposed by others to address their own deteriorating circumstances, African Americans must be prepared to counter negative changes to be imposed upon them in the restructuring of America that is likely to emerge in the future, with changes that they favor, grounded in international law.
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