Excerpted From: Rabiat Akande, An Imperial History of Race-Religion in International Law, 118 American Journal of International Law 1 (January, 2024) (205 Footnotes) (Full Document)


RabiatAkandeMore than half a century after the United Nations General Assembly's (UNGA) adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination (ICERD), efforts are underway to formulate a protocol to the landmark convention. Much of the momentum for that endeavor comes from sustained local and global advocacy against racism. An integral part of contemporary anti-racism efforts is a push for legal recognition of the intersectional dimensions of racial domination and subjugation in order to address the unique precarity of persons inhabiting marginalized axes of identities and experiences. United Nations (UN) debates over repowering the ICERD have therefore featured proposals to intersectionalize the international legal response to racism and racial discrimination. The proposals have sought to address a number of intersectional experiences, but a proposal at the axis of race and religion has proven particularly contentious. Emanating from the Global South and sponsored by state parties to the Organization of Islamic Conference (OIC), the African bloc, and several Asian states, that proposal has called for ICERD's recognition of religious discrimination as it intersects with racial discrimination in the experiences of persons who are simultaneously racial and religious minorities. A dimension of that proposal, however, goes beyond calling attention to the race and religion intersectional axis; it seeks international legal recognition of contemporary discrimination against religious minorities as a form of racism. Proponents cite the common practice of attributing homogenizing racial markers to internally diverse religious minority groups as a notable manifestation of this “racing” of “religion,” and argue that such homogenization paves the way for “race-religion” discrimination.

Claims about the racialization of religious minorities have hardly been confined to UN debates. An emerging body of scholarship now argues that minority religions are deprived of international and national legal protections due to the exclusionary Euro-Christian foundations of the legal regime of religious liberty. Religious minorities are not construed as religious persons, scholars argue, but instead law racializes these persons by homogenizing and ultimately demarcating these persons as a disfavored “other” to “civilized” society. This process connotes racialization, but persistent international legal understanding of racism in phenotypical terms effectively preclude religious minorities from legal remedies. The consequence has been that religious minorities slip through a “protection gap,” deprived of recourse both in the legal protections against racial discrimination and those safeguarding religious liberty.

The case of Islamophobia has, in many ways, become central to advocacy and scholarship exploring this interplay of religious and racial discrimination. The broader social and political conditions for anti-Muslim discrimination reveal a homogenization and attribution of racial markers to Muslims despite Muslims being culturally, nationally, and ethnically diverse. A foremost illustration is the case of the Muslim veil. As they manifest in contemporary Europe and parts of North America, legal restrictions on the veil reveal a construction of the Muslim as a simultaneously racial and religious “other.” The discourses legitimating those restrictions homogenize Muslims as an essentialized racial category, marking the Muslim “other” as foreign--and fundamentally different. It is not only that Muslim women are demographically more likely to be phenotypically Black or brown; rather, what is at issue here is the racialized construction of Muslimness by these legal restrictions. The discursive construction of the veil as innately Muslim, and the framing of the covered Muslim woman's bid to live out that commitment to the veil as the antithesis of the universal(izing) civilizational ideals of liberty, security, and equality reveal the intricate entanglement of racial and religious othering. The point here is not that the veil is not a religious symbol; rather, I argue that by understanding the veil as a “peculiar” religious symbol, the state affirms its status as a foreign artifact that marks the alienness of the wearer. In this way, law and policy solutions to the “problem” of the veil mark Muslims as an undifferentiated outsider within the Western social order.

Both the international law of religious liberty and that concerning racial discrimination have been unresponsive to this interplay of racial and religious othering in restrictions on the veil. An overwhelming record of unsuccessful appeals to courts by veiled Muslim women, particularly in the context of the European Court of Human Rights (ECtHR), reveal the afterlife of what critical histories insist was originally fashioned as a Euro-Christian religious liberty regime. Notably, the Court has reasoned that the crucifix is a cultural symbol rather than a religious symbol, and accordingly upholding the presence of the crucifix in the public sphere. At the same time, however, the ECtHR's jurisprudence on the Muslim veil has reflected a racializing interpretive stance in which the Court understands the veil at once as inherently Muslim and as intrinsically antithetical to the values of civilized society, and thus justifiably subject to restrictions. As a result, the Court's conception of “religion,” and of what religious traditions are worthy of protection is inextricably linked with a civilizational hierarchy that is undeniably racial and religious. Yet, the racializing jurisprudence of religious liberty coexists with a lack of meaningful recourse to racial equality protections due to the enduring phenotypical understandings of race in constructions of the ICERD. Notably, the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) has demonstrated a reticence to understand claims of anti-Muslim discrimination in racial terms. CERD's jurisprudence construes the “interface between race and religion” as one of “double discrimination.” However the double discrimination paradigm relies on a limiting intersectional lens that elides the racial dimensions of anti-Muslim discrimination and the mutual co-constitution of racial and religious othering in that experience. The result is a protection gap whereby claimants lack recourse in the contemporary regime of religious liberty and in legal framework against racial discrimination.

If the case of anti-Muslim racism features prominently in the current ICERD debates, the “racing of religion” is hardly limited to the experience of Muslims. Racialized religious minorities abound, with the experiences of Jews and Indigenous peoples finding expression in ongoing policy debates and scholarly literature. For advocates and scholars of Islamophobia and other forms of racialized religious discrimination, the making of the ICERD protocol presents an opportunity to close the protection gap in the international legal framework that continues to preclude effective remedy.

There exists substantial opposition to the ICERD proposal. As expressed by the European Union delegation to the ICERD talks, the disapproval of the race-religion proposal stems in part from a concern that recognizing the interplay of racial and religious discrimination would unduly privilege religion to the detriment of other intersectional experiences. Others have expressed concerns about the vulnerability of internal minorities within religious groups. Skeptics also argue that the best response to the experience of discrimination by racialized religious groups would be to strengthen the international legal frameworks addressing racial discrimination and religious discrimination separately, rather than conflating the two forms of discrimination. Therefore, contrary to the proposal's close interlinkage of racial and religious discrimination, critics seek to disentangle these as disparate experiences deserving distinct legal responses.

This Article intervenes in the ongoing ICERD debate by looking to the past. I argue, first, that racial and religious othering were mutually co-constitutive in the colonial encounter, an encounter that critical genealogies have established as foundational to the making of modern international law. Moreover, I contend that the legacy of that past survives in the continuing interplay of the racial and religious othering of the non-Euro-Christian other. I further show that the current proposal that seeks international legal recognition of the interplay between racial and religious othering is far from new. Iterations of that race-religion proposal surfaced at two defining moments in international legal history--of late, during the mid-twentieth-century negotiations that culminated in the ICERD, and previously, during the early twentieth-century negotiation of the League of Nations' Covenant. It is striking that these past attempts have received little attention in the scholarly literature and in the ongoing ICERD debates. By illuminating the centrality of race-religion othering to the colonial encounter and analyzing how historical efforts to formulate an appropriate international legal response to that interplay foundered, this Article presents an imperial history of race-religion in international law. The narrative that follows reveals that the story of the racialization of religious minorities and the story of the protection gap that deprives these groups of international legal protection are far from separate narratives. Rather, these accounts are interconnected, bound in a story of othering that is foundational to the colonial origins of the international legal order. Recognizing the ways in which today's international legal framework (and the mounting challenge to its legitimacy) inhabits the history narrated in this Article is indispensable to imagining effective international legal protections for racialized religious minorities.

The Article proceeds as follows. Based on a close examination of imperial legal discourses in the nineteenth and early twentieth century, Part I illuminates the mutual co-constitution of race and religion in the colonial encounter. Part II spotlights two earlier attempts to link international legal protections for race and religion, revealing the “how” and the “why” behind those failed efforts. Arguing that the imperial history of race-religion othering lives on, Part III illuminates the enduring protection gap that continues to preclude effective recourse for racialized religious minorities in international law. Even well-intended juristic efforts that frame the problem of race-religion discrimination as one of an intersectional double discrimination, based on the distinct categories of race and religion, rather than as a mutually constitutive form of discrimination, contribute to the protection gap. Only an appreciation of the intimate interplay of the racial and religious othering of the non-Euro-Christian other is faithful to the historical chronicle, and only such an understanding can serve as a basis for constructive reform efforts.

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This Article historicizes the current bid to link international legal protections for racial and religious discrimination. I situate that proposal in the longer history of the colonial origins of international law and argue that the European imperial expansionist project that formed the basis of the current international legal order was based on a race-religion demarcation. Far from separate, racial and religious othering were intimately bound and mutually co-constitutive. Moreover, that othering functioned to separate Christian Euro-America from its “others.” That racial-religious hierarchy and subordination inspired two significant historical efforts to secure international legal protection for the unique form of marginalization that emerged from the mutual imbrication of racial and religious othering. Tabled at epochal moments in the making of the international legal order--the foundational moments of negotiating the League Covenant, and the years following World War II--those efforts are meaningful even if they foundered. The neutralization of those earlier efforts by imperial powers reveals that the much-criticized protection gap that leaves racialized religious groups without legal recourse (and that in significant ways compounds the marginalization of those groups) is a product of the same hierarchies that subordinate the racial-religious other. The current ICERD debates provide a unique opportunity to confront the continuing afterlife of the imperial history of race-religion othering, and to creatively imagine an emancipatory international legal response.

This Article offers an approach to understanding the international legal problem of race-religion discrimination, the ineffectual international framework that problem inhabits, and the enduring struggle against race-religion othering by centering the history of Europe's colonial encounter with its “others.” The centering of Europe's nineteenth- and twentieth-century colonial encounter with the world--and the unmasking of its lasting legacy--is not intended to elide earlier modes of imperial hierarchies and subordination. Neither does this account occlude contemporary manifestations of religious or ethno-racial discrimination in the global south, including within the formerly colonized states spearheading the ICERD reform. By affixing its gaze on Europe, this Article unveils the colonial foundations of the co-constitution of religious and racial othering in modern international law. The emerging chronicle elucidates what is otherwise confounding about the inequities of the contemporary international legal regime and offers intellectual aid to contemporary efforts to transcend the imperial past through bold reform.

Assistant Professor, Osgoode Hall Law School, York University, Toronto, Canada (This email address is being protected from spambots. You need JavaScript enabled to view it.).