two treaties, and global influences of the american...

TWO TREATIES, AND GLOBAL INFLUENCES OF THE

AMERICAN CIVIL RIGHTS MOVEMENT, THROUGH THE BLACK

INTERNATIONAL TRADITION

Henry J. Richardson, III*

CONTENTS

Introduction ............................................................................................ 59 I. Identifying the Black International Tradition ...................................... 61

A. Influences of ―Outside‖ Mass Struggles by Peoples of Color ....... 62 B. Examples of the global impact of the American Civil Rights

Movement ..................................................................................... 66 II. The Impact of Two Key Treaties on African-American Collective

Debates on the Best Route Towards Liberation ............................ 67 A. The Berlin Conference and the Treaty of Berlin ............................ 68 B. The United Nations Charter ........................................................... 74

III. Conclusion ........................................................................................ 80

INTRODUCTION

The Black International Tradition is essential for understanding the

necessity of critical scholarship in law and other disciplines, as we

remember the modern birth of the Civil Rights Movement a half-century

ago. In that regard, this article seeks to help us understand the present

meaning of rededicating ourselves to the ideals of that movement.

This article will open by briefly sketching the Black (African-

American) International Tradition. The sketch will confirm the reality of

that Tradition, laid down over more than 400 years, as an integral part of

Black people‘s history on American soil. African Americans have not

just bumped into, nor been episodically surprised by, international

issues. In the last 150 years, Blacks in North America have been heavily

influenced by the news of mass organized Black struggle elsewhere in

the world, and the Tradition includes Black claims and demands around

that news. The news of resistance elsewhere, for example, has long been

influential by encouraging greater fortitude and dedication against

domestic slavery as well as supporting the general Black historic

struggle against racism.

This article will also briefly discuss examples of the American Civil

Rights Movement‘s own impact on the global level. While not discussed

in this paper, arguably this impact was recently recognized in a special

way by the award of the 2010 Nobel Peace Prize to President Obama, his

* Professor of Law, Temple University Law School. I greatly appreciate the

support of the Clifford Scott Green Research Fund, and the excellent research

assistance of Ms. Smruti Govan, J.D. 2010, along with Steven Cobb, J.D.

(expected) 2011. All errors remain my own.

60 Virginia Journal of Social Policy & the Law [Vol. 18:1

election as the United States‘ first African-American President standing

on the shoulders of the Civil Rights Movement. More generally, this

impact has unfolded through a variety of cultural, political, and diasporic

routes, including through strategies of comparative constitutional law,

for example, with respect to the United States and South Africa.1

Following this all too brief survey of pertinent indications of the

authority of the Black International Tradition, the remainder of this

article will explore, as examples of that authority, two major treaties of

global significance: the 1885 Conference of Berlin and the United

Nations Charter of 1945. Each treaty has played a notable role in that

Tradition by serving as a fulcrum for contemporary African collective

debates on liberation-related issues at the local level. Each treaty served

as a focus for African-American claims (that is, normative demands)

about the content of their international interests and how they related to

the correct route towards liberation. Such interests included, importantly,

African Americans‘ interests in international law. Black leaders framed

the national debate on the best routes to Black liberation, framed Black

international interests around these two treaties, and linked those

interests back to the national liberation debates. These historical

processes were notable in evolving the past century of the Black

International Tradition.

The article reflects, in sum, that Blacks, notwithstanding much

official opposition and lack of academic recognition, have always been

involved in international affairs and had interests in international law,

since before they were brought in chains to this territory, and before

America was a nation. African Americans have their own International

Tradition, which arose without the permission of either federal authority

in Washington or controlling white interests. The Haitian and Ghandian

revolutions, as well as the decolonization movement of the mid-

twentieth century, indicate within this Tradition the borrowing by

African Americans of example and inspiration from mass struggle

abroad by peoples of color. The recent global anti-war movement against

the invasion of Iraq and the internationalization of the success of the

1 See, e.g., STEINER, ALSTON & GOODMAN, INTERNATIONAL HUMAN RIGHTS IN

CONTEXT 23-42 (3d ed. 2007). The authors discuss the South African case State

v. Makwanye, 1995 (3) SA 391 (CC) and the U.S. case Roper v. Simmons, 543

U.S. 551 (2005), regarding issues in the comparative constitutionality of the

death penalty. Discussions such as these impacted the drafting of the South

African Constitution. South African-ANC fact-finding groups came to the U.S.

in the early 1990's, liaising with progressive constitutional, civil rights, and

international lawyers, including myself, to learn what doctrines, structure,

interpretations, and text of the U.S. Constitution not to incorporate as they

drafted their own. Also, see generally George Fredrickson's comparative work

on race in South Africa and the U.S. and the racial synergies between these two

countries.

Fall 2010] Global Influences of the Civil Rights Movement 61

African National Congress in liberating South Africa in 1994 are

examples of the impact that the American Civil Rights Movement

continues to have in the world community. Finally, treaties and other

instruments of international law can help African-American leaders and

the rank and file focus and shape major local and international demands

and strategies towards the most promising path to liberation in America.

I. IDENTIFYING THE BLACK INTERNATIONAL TRADITION

The Black International Tradition is a documented historical

pathway of Black claims and demands to ―outside law‖ often focused on

international events. It comprises claims and demands to be governed by

better, more liberation-promising normative authority ―outside‖ of local

American law and policy, which upheld slavery and national racism. The

Tradition antedates the founding of the United States in 1776 but

continues to unfold during the present and into the future. It is an

historical process of all groups and genders of Blacks in America who

identify and act on their international interests. They do so by making

demands to international law and other outside law (sources of

normative rejection of slavery and racism) for better prescription and

enforcement of their rights to be free of racism and treated with dignity.

Further discussion herein and the other Symposium articles on African-

American international questions and actions are part of the current

chronicles of this Tradition.

For instance, the War of 1812 confirms early evidence of Blacks in

the United States asserting claims to a right of general equality and

freedom under outside law in return for their military service.2 Blacks

who aligned with the British during the War in British Canada fought to

secure their freedom once they crossed the border into Canada, and

secure their land rights—a separate struggle—by reaching beyond the

British law that was applied to them in Canada. Additionally, Blacks in

that period fighting in a militia led by British adventurer William

Augustus Bowles claimed the right, under outside law, to choose among

international (white) contenders to fight for the side promising the

greatest prospects for Black freedom. Earlier, during the American

Revolution, Blacks had made the same general claim in a more

numerous and emphatic set of actions. But here Blacks claimed the right,

as Blacks, to fight to defend the then foreign-held territory of Florida as

a refuge for escaped American slaves.3 This, and other examples of

African-heritage people in the Americas accepting (white, colonial)

military service in return for guarantees of freedom and land, helped

form the only contemporaneous principle of customary international law

2 HENRY J. RICHARDSON III, THE ORIGINS OF AFRICAN-AMERICAN INTERESTS IN

INTERNATIONAL LAW 416 (2008). 3 Id. at 403.


that created a right for slaves to be freed, although only subsequent to

such a bargain.4 The principle can be said to have evolved by the

outbreak of the War of 1812, and was incorporated by Blacks into their

own domestic equation about land, freedom, and military service.

A. INFLUENCES OF “OUTSIDE” MASS STRUGGLES BY PEOPLES OF COLOR

Beginning in the early seventeenth century, and possibly even

before, outside events were feeding inspiration into resistance efforts of

American slaves and free Black persons. Indeed the first eleven Africans

brought to New Amsterdam (New York) in 1625 made implicit claims to

―outside‖ law (Dutch law) regarding the right to be free from slavery and

indentured servitude.5 Later many Blacks made implicit claims to

freedom by rejecting the Dutch system by either seeking refuge in

Canada or aligning with two potential invaders, the Native Americans

and the British, because of the belief that these groups had a better

system of laws guaranteeing their right to escape from slavery and their

right to freedom from slavery.6 News of various slave rebellions spread

and further inspired slaves, including those of the Black Maroon

movements (communities in the Caribbean and Central American

territories). News may also have spread from the Republic of Palmares

in Brazil, the seventeenth-century African independent community that

was possibly the greatest Maroon community to exist, lasting a century.

In fact almost every Caribbean island has a record of revolts against

the plantation system, including Jamaica, which by 1730 was so plagued

by attacks from Maroons that England had to send extra forces to the

island.7 The Republic of Palmares was perhaps the most successful

Maroon community, as it withstood numerous attacks by Portuguese

forces. It was established by runaway slaves as an African state in

Alagoas, northeastern Brazil, between 1630 and 1697.8 By creating an

independent Republic, the leaders of Palmares essentially asserted a

claim to establish sovereign authority and control over a defined

territory.9 While it remains unclear if the leaders intended to assert a

claim for independent statehood under international law vis-à-vis

European states, the leaders were in essence claiming a collective right

to emigrate from a territory of enslavement to another jurisdiction that

lacked direct legal endorsement of slavery.10

4 Id. at 416.

5 Id. at 57.

6 Id. ―Escap[ing]‖ is a narrower issue than ―freedom,‖ as it presupposes the

continuation of slavery, and each has a separate historiography. 7 Id. at 77.

8 Id. at 82.

9 Id.

10 Id. at 82, 83.


Other examples of outside inspirational events include the Haitian

Revolution, of which the impact on America should not be

underestimated. This impact includes its direct impact on slave revolts.

The Haitian Revolution was a significant source of outside law in

establishing the invalidity of all slavery norms and power assumptions,

and American slave revolts invoked and incorporated such law, such as

Prosser‘s Rebellion in Virginia in 1800. As early as the 1620s, Haiti had

established its own Maroon communities, which were responsible for the

Haitian uprisings of 1679, 1691, and 1704.11

The Haitian rebel leader

Macandal rose to power and led a coup d‘état in 1758, which later

spurred the Haitian Revolution in 1791. News of the Haitian Revolution

spread among white colonists through commercial intercourse and,

concurrently, through the Black community within the United States.12

The influx of Frenchmen fleeing the Revolution into the United States,

along with as many as 12,000 Haitian slaves, may also have contributed

to the increased awareness of Black participants in American slave

revolts.13

The Haitian Revolution also raised alarm among Southern

plantation owners, prompting the passage of legislation within Southern

states prohibiting the importation of Black slaves from the Caribbean.14

Moving forward through the nineteenth century, such outside

inspiration included news and growing Black understanding of the

treatment and struggles of Africans and other peoples of color by and

against European empires. They struggled first simply for decent

overseas colonial treatment, and later for justice and liberation, and this

news became increasingly influential among Blacks in America. The

former was framed in law by the late nineteenth-century public

international legal briefs of George Washington Williams regarding the

Belgian atrocities inflicted on the people of the Congo, which I will

discuss later.15

These global struggles were further framed by the early

work of W.E.B. Du Bois in his first Pan-African Conferences. He

particularly made an historic claim with his petition to the Versailles

Peace Conference at the end of World War I, in which he demanded that

the right of self-determination of colonized peoples of color be

recognized as equal to the analogous rights of Southern European

peoples under President Wilson‘s 14 Points.16

Du Bois‘ demand was

11

Id. at 77 12

Id. at 78–79. 13

Id. at 367, 368. 14

Id. at 231. 15

See George Washington Williams to King Leopold II, An Open Letter to his

Serene Majesty Leopold II, King of the Belgians and Sovereign of the

Independent State of Congo, in JOHN HOPE FRANKLIN, GEORGE WASHINGTON

WILLIAMS: A BIOGRAPHY 243–54 (1985) [hereinafter WILLIAMS BIOGRAPHY]. 16

DAVID LEVERING LEWIS, W.E.B. DU BOIS: BIOGRAPHY OF A RACE 576 (1993);

W.E.B. Du Bois, My Mission, THE CRISIS, May 1919, at 8, reprinted in 1

SELECTIONS FROM THE CRISIS 187 (Herbert Aptheker ed., 1983).


rejected by European leaders, but his action and its content constituted a

powerful point in the twentieth century evolution of the Black

International Tradition.

Further, the presence of an NAACP representative at the founding

meeting of the African National Conference in Johannesburg in 1910

represented a linkage of struggles against lynching and American

apartheid in the United States and the systematic killing and oppression

of Africans in pre-apartheid South Africa. In South Africa,

consciousness of violent white racism was increasing through the Indian

community‘s mass struggle, of which the young Mohandas K. Gandhi

was a part as of 1912, before his emigration to India. And looking

forward, it is important to recognize the impact Gandhi‘s non-violent

struggle against British colonialism in India, beginning in the 1930s, had

on the young Martin Luther King, Jr.‘s ideas and the growth of his

commitment to non-violence while he was in college and seminary.

After World War II, in the mid-1950s, the active global

decolonization struggles were increasingly led by a series of mass

movements unfolding colonial territory by colonial territory, not least in

Africa. An example of the linkage between the early Civil Rights

Movement and the global human-rights-self-determination-

decolonization narrative is the presence of Adam Clayton Powell, a

leader of Harlem civil rights marches in the 1940s, pastor of its largest

church and a crusading Congressman, at the 1955 Bandung Conference,

which was the first self-identified Conference of ―third world‖ peoples.17

There is an historical symbiosis between the emergence of these

decolonization struggles, fed in part by the educational symbiosis among

Black Folks in the United States of leaders such as Kwame Nkhrumah of

Ghana and Azikwe of Nigeria, and the rise of our own Civil Rights

Movement beginning in Montgomery in 1955, led by the young, talented

preacher Martin Luther King, Jr. We note the feedback global support—

and global recognition of its meaning for America—that the American

Civil Rights Movement began to garner from, for example, the

governments and peoples of the newly independent Ghana, Nigeria, and

Kenya, and other developing states, such as Cuba.18

We note in the early

1970s the impact of these events on the great African-American leader

Malcolm X, who was drawn to the historical Muslim perennial mass

movement and pilgrimage towards Mecca, as he joined it in his Hajj. He

returned to stir America, in his intense and riveting work, with a more

inclusive and wider definition of liberation for all oppressed peoples.

Malcolm X had acquired a personal capacity to put the Black liberation

struggle in a stronger human context and to borrow from the long

17

JOHN HOPE FRANKLIN, FROM SLAVERY TO FREEDOM, A HISTORY OF AFRICAN

AMERICANS 554–55 (2009). 18

Id.


Islamic traditions in connecting the Movement with Black Muslims in

America.19

As he stated during his trip to Mecca:

America needs to understand Islam, because this is the

one religion that erases from its society the race

problem. . . . I have never before seen sincere and true

brotherhood practiced by all colors together, irrespective

of their color. . . . [P]erhaps if white Americans could

accept the Oneness of God, then perhaps, too, they could

accept in reality the Oneness of Man—and cease to

measure, and hinder, and harm others in terms of their

―differences‖ in color. . . . Each hour here in the Holy

Land enables me to have greater spiritual insights into

what is happening in America between black and

white.20

Lastly, in this incomplete sketch, we cannot forget the historic

international anti-apartheid struggle of the 1960s through the early

1990s. Nelson Mandela and other African National Congress heroes in

South Africa evolved into African-American heroes. The Civil Rights

Movement fused with the human rights movement in the nationwide

Free South Africa campaign of the 1980s under the leadership, inter alia,

of Rev. Leon Sullivan with his Sullivan Principles of corporate and

investor responsibility against South African apartheid, Congressman

Charles Diggs, law professor Goler Butcher, and Randall Robinson of

the NGO TransAfrica. The Free South Africa campaign prescribed new

national legal rights principles as it grew. These norms included the

obligation to divest from the economic support and institutions of a

foreign oppressor regime. They also asserted that trade with an oppressor

government aids that oppressor and constitutes a tacit endorsement of

that regime and its racist policies. In essence, these principles prescribed

duties on corporations, codified through the Sullivan Principles, to

provide equal treatment and benefits to South African black workers and

essentially called for extending U.S. equal protection standards to

similarly oppressed overseas groups in U.S. trading partner states.21

The Free South Africa campaign grew into a mighty mass movement

that took a major foreign policy issue on South Africa away from the

Reagan administration executive and its policy of ―constructive

engagement‖ by producing veto-proof federal legislation: the

Comprehensive Anti-Apartheid Act of 1986.22

This act directly

19

Id. 20

ALEX HALEY, THE AUTOBIOGRAPHY OF MALCOLM X 345–46 (1965). 21

See generally Henry J. Richardson, III, Reverend Leon Sullivan’s Principles,

Race, and International Law: A Comment, 15 TEMP. INT'L & COMP. L.J. 55

(2001). 22

Comprehensive Anti-Apartheid Act of 1986, H.R. 4868, 99th Cong. (1986).


supported South African liberation through mandatory economic

sanctions and corporate divestment. Framed in part by the work of Rev.

Leon Sullivan and his Sullivan Principles but propelled by the general

campaign, the movement laid the foundation for the global principles

and evolving law that corporations have human rights responsibilities

overseas to vulnerable peoples within their influence. In essence, the

Free South Africa Movement injected international human rights norms

into the domestic jurisdiction of South Africa by influencing

multinational corporations who had considerable impact upon South

Africa‘s economy.23

The Movement, including the Sullivan Principles,

expanded the international legal doctrine of state responsibility,

especially with regard to duties of states under international law relative

to multinational corporations subject to that state‘s jurisdiction. It

clarified the obligation of the U.S. government to extend and promote

racial equality through regulation of multinational corporations.24

I

believe that African Americans were so successful in producing new

American policy and law, at least for that moment, in the Free South

Africa Movement that, paradoxically, they and other scholars are almost

afraid to study it, explore its strategies, and draw its lessons, including

those about norm creation and law. The dearth of scholarly publications

on these issues is unfortunate.

B. EXAMPLES OF THE GLOBAL IMPACT OF

THE AMERICAN CIVIL RIGHTS MOVEMENT

We begin this short sketch by noting that the American Free South

Africa Movement directly and purposefully supported the successful

liberation struggle of the African National Congress in South Africa.25

The American Civil Rights Movement was a model for foreign Black

consciousness rights movements in other instances as well, such as other

African-heritage rights movements and organizations of lawyers of color

dedicated to representing vulnerable groups in Canada and Great

Britain.26

The Movement as both a jurisprudential model and source of

leverage also influenced Thurgood Marshall in his role in the Kenyan

independence constitution negotiations with Britain, as Mary Dudziak

has recently well written this history.27

And we must include the cross-

23

See generally Richardson, supra note 21. 24

See, e.g., id. at 78 (―The racial narrative in the Global Principles continues

into their holding multinationals responsible for the rights-welfare of

communities within their—in the words of U.N. Secretary-General Annan‘s

subsequent U.N. Global Compact—‗spheres of influence.‘‖). 25

See generally Richardson, supra note 21. 26

See, e.g., National Conference of Black Lawyers, http://www.ncbl.org. See

generally Gerald Horne, Hands Across the Water: Afro-American Lawyers and

the Decolonization of Southern Africa, 45 GUILD PRAC. 110 (1988). 27

MARY DUDZIAK, EXPORTING AMERICAN DREAMS: THURGOOD MARSHALL‘S

AFRICAN JOURNEY (2008).


impact, through the early work of Du Bois and Paul Robeson and later

through the leadership of Martin Luther King, Jr., of the American Civil

Rights Movement on the global peace movement. This cross-impact

arguably culminated on King‘s birthday in 2003 in the largest

simultaneous global peace marches and demonstrations in history,

involving millions of people in more than twenty cities globally,

protesting the U.S. invasion of Iraq.28

This Iraq Anti-War movement is

evidence of King‘s legacy of combining civil rights, human rights, and

peace movements through Gandhian principles.29

Additionally, the

impact of the Civil Rights Movement coupled with the rise of Critical

Race Theory and similar American jurisprudence has now been felt, for

example, in Brazil. Recently emerged is a notable politics of color

initiated by Afro-Brazilians who acknowledge the influence of African-

American struggles. They call into question the ―non-racial‖ tradition of

assimilado that shapes the distribution of privilege and deprivation in

that society,30

and they are identifying and organizing around racial

discrimination issues. Similar movements have also arisen elsewhere in

Inter-American states, including in Colombia where a movement has

organized around the oppression of Afro-Colombians.31

II. THE IMPACT OF TWO KEY TREATIES ON AFRICAN-AMERICAN

COLLECTIVE DEBATES ON THE BEST ROUTE TOWARDS LIBERATION

I turn now to focus on two major treaties. These treaties are of

historical significance in their own eras in the march of the Black

International Tradition. But they also provide current insights on how

rights-related treaties and international law can shape crucial African-

American debates about which collective decisions best serve the

purpose of moving towards security of rights and freedom from racism

in America.

Each treaty has respectively served as a fulcrum at a key point in

Black History, around which competing collective Black claims swirled

about the correct essential—not merely the best—path of African

Americans towards better protection and definitions of their rights,

towards their liberation from racism. Around both treaties—even though

the earlier was not formally ratified by the United States—these

collective debates were taking place. They were part of African

28

Henry J. Richardson III, Dr. Martin Luther King, Jr. as an International

Human Rights Leader, 52 VILLANOVA L. R. 471, 473 (2007). 29

Id. at 478. 30

See Peter Fry, Politics, Nationality and the Meanings of “Race” in Brazil, 129

DAEDALUS 83–87, 90–93 (2000). 31

See Gay MacDougall, United Nations Independent Expert on Minority Issues,

Statement on the conclusion of her official visit to Colombia (Feb. 12, 2010),

available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?Ne

wsID=9821&LangID=E.


Americans‘ necessary attempts to help shape decisions in the intertwined

processes of public authority of the American community and that of the

global community. The first of these two treaties is the Treaty of Berlin

of 1885, which codified imposed boundaries to partition Africa among

the European colonial powers.32

The second is the United Nations

Charter of 1946, which constitutively established a new world order at

the close of World War II, to which individual human rights were

integral, and undermined the legality of colonialism under international

law.

A. THE BERLIN CONFERENCE AND THE TREATY OF BERLIN

The Conference of Berlin convened in 1884 to negotiate

accommodating arrangements on the African continent among European

empire states, plus other interested governments, including the United

States. These states had already drawn lines on European maps

delimiting their territorial spheres of influence and colonizing in Africa.

Such boundaries reflected their stakes in cheaply harvesting African

resources for the wealth of the European metropolitan state, including in

the remnants of the international slave trade, securing control of territory

and peoples for future economic monopolies, and preventing undue

advantage in this regard to rival European states. The interests of African

peoples were generally irrelevant to this process, and European military

action to enforce these claims was assumed. European rivalries around

these issues, including boundary issues of claimed colonial African

territories, had appeared and threatened conflict.

Hence the Conference produced the Treaty of Berlin in 1885

(formally, the General Act of the Conference of Berlin). The Treaty

codified, under international law, European colonial spheres of influence

on the African continent based on principles of European economic

tolerance and cooperation. Indeed, it ushered in the beginning of this

coercive and active phase of colonizing African peoples with, inter alia,

a declaration proclaiming the end of the African slave trade. It also

solidified, with systemic detrimental consequences in Africa down to the

present moment, the division of the Continent by European-drawn

colonial boundaries. The fixing of such borders had little to do with

patterns of African customs, lands, life, cultures, and politics, resulting

in continuing border disputes, jurisdictional frictions, litigation, and

barriers to defining continental African interests. Nevertheless, the

colonial fixing of these borders carried forward to territorially define

modern African independent states following decolonization.

Incorporating its imperial European prerogatives of African

partition, the Treaty arrived in America, with the possibility of its

32

General Act of Berlin Conference, February 26, 1885, 3 Wiktor 71.


ratification by Washington,33

to serve as a fulcrum of and provide a

focus on issues in a continuing collective debate among African-

American leaders. Those leaders favoring African-American emigration

back to Africa tended to see the Treaty‘s European imperial partition of

Africa as promising benefits for African peoples in building African

progress. Along with earlier leaders, they tended to see African

Americans as both providing and sharing in those benefits in

Liberia, Sierra Leone, the Congo, and elsewhere,34

even including the

future dream of a powerful unified African continent. For example, both

Timothy Fortune, editor and co-founder of the New York Globe (later the

New York Freeman), and John Bruce demonstrated an optimism

concerning the impact of European colonialism upon Africa, believing

that out of the white oppression of Africans would emerge a united

―African Empire: comparable to the unification of Germany.‖35

Fortune

expressed these sentiments in The Freeman, 1887, stating:

It is written on the wall that there will one day be an

African empire whose extent and power will be inferior

to that of no government now denominated as a first

class power . . . people will become educated, not only

in the grasping and cruel nature of the white man, but in

the knowledge of their power, their priority of

ownership in the soil, and in the desperation which

tyranny and greed never fail to breed for their own

destruction. Out of the convulsions, which are sure to

come, an African Confederation, not unlike that of

Germany, will certainly be evolved. It can hardly be

prevented, save by Omnipotent interposition. So out of

toil and privation and long agony, good will eventually

come to the swarthy millions of our Fatherland.36

Leaders such as Fortune and Bruce thus tended to urge African

Americans to support the Treaty by both supporting African emigration

and approving of European colonialism in Africa for these projected

purposes.

33

See WILLIAMS BIOGRAPHY, supra note 15, at 186–87. 34

See id. at 183; JOHN FRANKLIN & EVELYN HIGGINBOTHAM, FROM SLAVERY TO

FREEDOM: A HISTORY OF AFRICAN AMERICANS 182–83 (McGraw-Hill 9th ed.

2010). See generally SCHOMBURG CTR. FOR RESEARCH IN BLACK CULTURE,

N.Y. PUB. LIBRARY, AFRICAN AMERICAN DESK REFERENCE 52 (1999); JEREMY I.

LEVITT, THE EVOLUTION OF DEADLY CONFLICT IN LIBERIA, FROM

‗PATERNALTARIANISM‘ TO STATE COLLAPSE (2005). 35

Johnson A. Adefila, The Black Press and Africa in the 19th Century Black

American Struggle for Equality, in CRITICAL PERSPECTIVES ON HISTORICAL AND

CONTEMPORARY ISSUES ABOUT AFRICA AND BLACK AMERICA 38–40 (Tunde

Adeleke ed., 2004). 36

Id. at 40.


Fortune and Bruce were also joined by Booker T. Washington, who

stated that ―it was to the advantage of the African people to use

European imperialism as a means of ‗uplifting‘ themselves and

developing their resources‖37

and further encouraged American

investment in Africa to develop business opportunities for African

Americans. These perspectives were generally consonant with those of

earlier nineteenth-century proponents of African-American emigration.

These early proponents wove these goals into European colonialism in

various ways, not excluding African-American colonization of Africa in

the context of Black nationalism. Leaders of this ideology included

Martin Delaney, Bishop Henry Turner, Henry Highland Garnet, John

Mercer Langston, Alexander Crummell, and Edward Blyden. Garnet, for

example, supported limited emigration to West Africa for the purposes

of establishing a Black industrial nation that could compete with the

Western world and establish markets for sugar, cotton, and the like.38

In

1858, in conjunction with this view, he helped create the African

Civilization Society in order to encourage black professionals to

establish a cotton industry within the Niger region that could possibly

compete with the southern U.S. cotton industry. He envisioned a small

group of African Americans setting up permanent residence within the

Niger region, supervising the cotton trade and establishing an African-

American state while also spreading the Christian gospel.39

Other leaders had related visions. Alexander Crummell, a prominent

African-American Episcopalian clergyman and an ardent supporter of

Afro-American colonization in Africa, spent twenty years in Liberia

exploring the possibility of creating an Afro-American colony there.

Ultimately, he believed that African Americans, having been redeemed

and civilized by the Western world, should return to their ancestral land

and use their knowledge and belief in Christianity to promote the

regeneration and modernization of the continent.40

Some leaders adopted

a more Pan-African view, asserting that Black people were all

interconnected through racial identity. They should thus return to their

homeland, establish a Black nation and fulfill their duty of civilizing and

proselytizing their African brethren.41

Delaney shared this view that the

37

SYLVIA JACOBS, THE AFRICAN NEXUS: BLACK AMERICAN PERSPECTIVES ON

THE EUROPEAN PARTITIONING OF AFRICA, 1880–1920, at 49 (1981). 38

Ella Forbes, African American Resistance to Colonization, 21 J. BLACK STUD.

210, 222 (1990). 39

Richard Blackett, The African Civilization Society, in ORGANIZING BLACK

AMERICA: AN ENCYCLOPEDIA OF AFRICAN AMERICAN ASSOCIATIONS 4, 14–15

(Nina Mjagkij ed., 2001). 40

George Shepperson, Aspects of American Interest in the Berlin Conference, in

BISMARCK, EUROPE, AND AFRICA: THE BERLIN AFRICA CONFERENCE 1884–1885

AND THE ONSET OF PARTITION 289 (Stig Förster, Wolfgang J. Mommsen, Ronald

Robinson eds., Oxford Univ. Press 1988). 41

See Adefila, supra note 35, at 35.


only option left for Blacks was to assert African heritage as the basis for

a new identity and, after visiting Africa from 1859–1861, championed

the cause of emigration as a way of creating a new black nationality in

Africa.42

As a result of American refusal to grant Blacks full equality,

voluntary emigration to Africa remained a debated issue among Black

leaders.43

Edward Blyden, in 1895, cited the Treaty directly:

The African problem in Africa . . . is now engaging the

earnest attention and taxing the energies of all the

powers in Europe. The decision of the Berlin

Conference ten years ago, has placed Europe in relations

to Africa such as never before existed between the two

continents. Every power of Europe . . . has established

or is seeking to establish interests in Africa. The

conferences at Berlin in 1884–85, and at Brussels in

1890, assumed for Europe the continent of Africa as its

special field of operations. The scramble is over and

now the question is how to utilize the plunder in the

interests of civilization and progress.44

Blyden had hoped that America would follow the advances of European

colonialism in Africa by creating a colony within Africa where African

Americans could resettle and establish themselves. Shortly after the

Berlin Conference, Blyden had attempted through the influence of the

American Colonization Society—which had, from slaveholders and

other white dominant perspectives, long pushed for African American

emigration—to persuade the American government to appoint him as a

roving agent in West Africa. He would report on the activities of the

European powers so that the American government could intervene on

the part of Africans whenever necessary. Generally, Blyden emphasized

that Europeans could not and did not intend to colonize Africa, and

apparently did so because he did not want to discourage African-

American emigration. He generally emphasized the benign hopes for

African-focused development benefits of European partition rather than

the visible trends of control, exploitation, and oppression of African

peoples.45

42

Id. at 30. 43

Id. 44

Shepperson, supra note 40, at 290–91. 45

See HOLLIS R. LYNCH, EDWARD WILMOT BLYDEN: PAN-NEGRO PATRIOT

1832–1912, at 196–200 (1967); see also EDWARD W. BLYDEN, THE AFRICAN

PROBLEM AND OTHER DISCOURSES 23 (1890).


However, the opposing non-emigration position of this historic

debate had long been framed by leaders such as Fredrick Douglass.46

As

early as 1859, Douglass firmly held that those Blacks who emigrated

were ―traitors to the cause,‖ that the United States and the American

Colonization Society (which he vehemently opposed) should give no

support to African-American emigration, and that African Americans

should remain in the United States and work to ensure equality. In his

―The Folly of Colonization,‖ he further wrote:

But the worst thing, perhaps, about this colonization

nonsense is that it tends to throw over the Negro a

mantle of despair. It leads him to doubt the possibility of

his progress as an American citizen. It also encourages

popular prejudice with the hope that by persecution the

Negro can finally be dislodged and driven from his

natural home, while in the nature of the case he must

stay here and will stay here, if for no other reason than

because he cannot well get away. I object to the

colonization scheme, because it tends to weaken the

Negro‘s hold on one country, while it can give him no

rational hope of another. Its tendency is to make him

despondent and doubtful, where he should feel assured

and confident. It forces upon him the idea that he is

forever doomed to be a stranger and a sojourner in the

land of his birth, and that he has no permanent abiding

place here.47

Douglass‘ perspectives were consonant in the same period with those of

Samuel Cornish, the editor of the Black newspaper The Rights of All,

who stated, ―Nothing appears to me more trifling than to talk of repaying

to Africa the debt we owe her, by returning her sons to its coasts. I

consider that the shortest way to accomplish this grand object, is to do

her sons justice wherever we find them.‖48

George Washington Williams, lawyer, journalist, historian, explorer,

and the first African-American international lawyer, was the African-

American intellectual leader who at the time most directly addressed the

Treaty of Berlin. He was an early proponent of African-American

colonization, but with conflicted views on European-African

imperialism, and he originally supported American ratification of the

Treaty. But he later became one of the strongest opponents of European

46

See generally FREDERICK DOUGLASS, NARRATIVE OF THE LIFE OF FREDERICK

DOUGLASS: AN AMERICAN SLAVE (George Stade ed., Barnes & Noble 2003)

(1845). 47

FREDERICK DOUGLASS, THE FOLLY OF COLONIZATION (1894), available at

http://teachingamericanhistory.org/library/index.asp?document=1034. 48

Adefila, supra note 35, at 36.


colonization, including by the Belgian regime in the Congo. Belgium‘s

legal structure and oppressive policies in the Congo raised contemporary

questions, even from other European-African colonial powers. Williams

promised U.S. President Harrison that he would write a memorandum on

the ―International Law and sentimental reasons‖ advocating U.S.

ratification of the Treaty.49

However, he requested that the U.S.

government postpone the decision until after he completed his on-the-

ground investigation of Belgian King Leopold‘s regime over the Congo,

which he conducted on his own during an expedition to identify Congo

railroad investment property for the magnate Huntington Hartford. In

1890, after his investigation found a system of consistent Belgian

atrocities against the Congolese, Williams wrote an Open Letter to

accuse the Belgian King of violating the Treaty by maladministration

and gross brutalities in the Congo. This Letter was nothing less than an

international law brief on Belgian violations of Congolese rights, even

under contemporary international law of the period permitting

colonialism.50

He also wrote to President Harrison to try to gain

international support for censuring the Belgian Congo regime.51

Unfortunately Williams, having never fully recovered from Civil War

combat wounds, died in London shortly after emerging from his African

expedition.

The young W.E.B. Du Bois, by his own admission, did not really

take notice of the Treaty during the 1880s:

The Congo Free State was established and the Berlin

Conference of 1885 was reported to be an act of

civilization against the slave trade and liquor. French,

English and Germans pushed on in Africa, but I did not

question the interpretation which pictured this as the

advance of civilization and the benevolent tutelage of

barbarians.52

His opposition to colonization increased with the beginning of his

historic work organizing global Pan-African Conferences, and with the

approach of World War I.53

But with the approach of World War II, Du

Bois again returned to the Treaty, stating in 1940, ―Hitler is the late

crude but logical exponent of white world race philosophy since the

49

WILLIAMS BIOGRAPHY, supra note 15, at 264. 50

Id. at 243–54. 51

Id. at 264. 52

George Shepperson, The Centennial of the West African Conference of Berlin,

1884–1885, 46 PHYLON 37, 47 (1985). 53

SCHOMBURG CENTER FOR RESEARCH IN BLACK CULTURE, THE NEW YORK

PUBLIC LIBRARY AFRICAN AMERICAN DESK REFERENCE 11 (Stonesong Press

1999).


Conference of Berlin in 1884.‖54

Thus he, then as the leading African-

American scholar of international affairs, implicitly referred to the evils

of European imperialism and the partition of Africa by comparing that

imperialist philosophy and program and their consequences for African

peoples to that of Hitler, his global racial program, and its potential

consequences for all peoples.

Curiously, contemporary Black leaders, save Williams implicitly and

later Du Bois indirectly, did not seem to take any notice of the codified

tradeoff in the Treaty agreed to by European powers (and to some extent

by the United States). These countries confirmed under international law

the illegality of the slave trade regarding African ―native tribes‖ and the

territories of the Congo Basin, but their confirmation resulted in the

construction and imposition of a new international legal basis for

European coercive colonial domination of presumptively inferior

African peoples.55

Thus the Treaty of Berlin was a globally significant European treaty,

a major international legal foundation for European colonialism that was

signed but not ratified by the United States. Notwithstanding its lack of

formal American ratification, it became a focal point in its widely

recognized constitutive authority—a fulcrum—for essential, internal,

and local collective historic African-American debate about the correct

path to liberation of both themselves and African peoples. This debate—

a century old upon the Treaty‘s arrival—addressed key issues of identity

and citizenship regarding African Americans‘ own domiciles on

different continents, as well as the racial legitimacy of European states

agreeing to partition Africa. In this regard, the Treaty also became a

focus of African-American implicit claims to international law, plus

other international interests, regarding issues about their own path to

liberation.

B. THE UNITED NATIONS CHARTER

Let us now turn to how the United Nations Charter, which was

ratified by the United States as a major treaty and came into force in

1946,56

also served as a fulcrum around which a different historic

African-American collective debate revolved. This debate was among

the African-American leadership and among its people, about the best

way forward, in the new world order after World War II, to define,

ground, protect, enforce, and expand African-American rights in the

54

Shepperson, supra note 52, at 47 (1985). 55

See, e.g., General Act of the Berlin Conference on West Africa, Arts. 1, 2, 5,

6, 9, 13, Feb. 26, 1885. 56

Office of the Historian, Bureau of Public Affairs, U.S. Dep‘t of State, The

United States and the Founding of the United Nations (August 1941–October

1945) (Oct. 2005), http://www.jewishvirtuallibrary.org/jsource/UN/usun.html.


United States. It was a debate among Black Americans in which the

American white establishment, invoking the rise of the Cold War with

the Soviet Union, increasingly interfered and attempted to shape the

terms and issues to limit Black influence in defining them.57

Such white

elite interference recalled the role, beginning a century and a half earlier,

of the American Colonization Society in the African-American

emigration/African colonization debate discussed above.

The debate—which would, inter alia, split the NAACP and see Du

Bois ejected from that Organization in 194858

—was about whether

African-American rights in America could be finally secured, including

under law, only by their making common cause in the world community

with the rights struggles of the colonized and newly independent African

and other peoples of color still trapped in or just emerging formally from

European empires, irrespective of American foreign policy on these

issues. Alternatively, others argued that the legal and strategic

foundation of African Americans‘ rights in America must prominently

and exclusively rest on American law, whatever possible equitable-

rights-interpretation of its Constitution, and their collective claim as

stakeholders in racial America through, for example, recognition of the

history of Black military service to America. Thus, the debate centered

on whether African Americans‘ international outreach must be

consonant with Washington‘s foreign policies, including those towards

overseas peoples of color, as such policies were increasingly driven by

both domestic racism and U.S. Cold War fears about communism.

As the young W.E.B. Du Bois had played a late role in the liberation

path debate around the Treaty of Berlin, a still actively energetic Du

Bois in his seventies was at the center of this liberation path debate

around the Charter.59

As he fought successfully to become part of the

NAACP delegation to the Charter negotiating San Francisco Conference

in 1944, where the great diplomat Ralph Bunche was the only Black

member of the official U.S. government delegation, Du Bois was riding

the national expectations of Black Americans as then consistently

expressed in the Black press.60

Black Americans were much looking

57

See generally GERALD HORNE, BLACK AND RED: W.E.B. DU BOIS AND THE

AFRO-AMERICAN RESPONSE TO THE COLD WAR, 1944–1963 (1986). 58

See RICHARDSON, supra note 2, at xxxi-xli. 59

See id. 60

See CAROL ANDERSON, EYES OFF THE PRIZE: THE UNITED NATIONS AND THE

AFRICAN-AMERICAN STRUGGLE FOR HUMAN RIGHTS, 1944–1955, at 108 (2003)

(noting that the Atlanta Daily World commented that the NAACP directed the

world‘s attention to a miserable failure of democracy here in the United States

and the Chicago Defender called the petition a historic landmark, stating, ―If

this appeal does no more than awaken white America to the full realization of

the menace of racism to our national well-being and security it will have

achieved a noble purpose‖); see also RICHARDSON, supra note 2, at xxxii


forward to America‘s ratification of the Charter because of the

conjunction between its human rights provisions,61

which were binding

on all U.N. member states, and the Supremacy Clause of the U.S.

Constitution, which declares treaties of the United States to be the law of

the land equivalent to federal statutes.62

If this demanded legal process

were successful, the Charter in an important sense would have become a

significant source of federal rights for Blacks, since there was no

national civil rights legislation at that time. At the San Francisco

Conference and beyond, Du Bois energetically framed both that issue as

well as, inter alia, the question of whether the final Charter text would

clearly guarantee the rights of colonized peoples to be free of

colonialism under the legal doctrine of the right of self determination of

peoples.63

His energetic efforts angered many liberal elites, including

Eleanor Roosevelt, who had been invited into the process by part of the

NAACP leadership to help curb Du Bois. Her lack of success included

Du Bois‘ subsequent U.S. Senate testimony, as a private person, in 1946,

supporting America‘s ratification of the Charter per his position above

on self determination and abolition of colonialism.64

But the barons of key Senate committees, staunch and strategic

defenders of southern American apartheid, were aided by the rise of

Brickerism, whose proponents supported, on largely racial grounds, a

constitutional amendment barring a defined Treaty power in the

Constitution. Neither the barons nor the Brickerites would allow this

potential use of the American constitutional treaty power by the

President through Charter ratification to create, in effect, federal civil

(―Many Black folks did consciously believe that it was crucial to the welfare of

the ‗race‘ (Black folks) that the Charter be ratified as a U.S. treaty.‖). 61

U.N. Charter art. 55 states:

With a view to the creation of conditions of stability and well-

being which are necessary for peaceful and friendly relations

among nations based on respect for the principle of equal

rights and self-determination of peoples, the United Nations

shall promote: a) higher standards of living, full employment,

and conditions of economic and social progress and

development; b) solutions of international economic, social,

health, and related problems; and international cultural and

educational cooperation; and c) universal respect for, and

observance of, human rights and fundamental freedoms for all

without distinction as to race, sex, language, or religion.

U.N. Charter art. 56 notes that ―[a]ll Members pledge themselves to take joint

and separate action in co-operation with the Organization for the achievement of

the purposes set forth in Article 55.‖ 62

See U.S. CONST. art. VI, § 2. 63

See HORNE, supra note 57, at 37 (discussing Du Bois‘ popular lecture tour

following the San Francisco conference as he spoke to crowds of 2,000, 700 and

1,000 in Oakland, San Francisco, and Los Angeles, respectively). 64

See RICHARDSON, supra note 2, at xxxi–xli.


rights legislation benefitting Black folks.65

This would have done an

―end run‖ around their ―segregation forever‖—decades of opposition,

nullification, and interposition of all potential civil rights legislation. The

Charter would have undermined what they, using, inter alia, Ku Klux

Klan local terrorist enforcement since Reconstruction in Southern and

middle-Western states, had established: a legal American apartheid

system against Blacks.66

Those senators therefore forced President

Truman, as a condition for their support of Charter ratification, to

declare—under international law and American constitutional law—that

the United States considered the Charter human rights provisions not to

be binding on American law nor the internal law of any Member state,

but that they represented only non-legal aspirational goals of

humankind.67

This strike of interpretive jurisprudence framed the substantial post-

war American legal, jurisprudential, political, and racial barriers to

African Americans making claims to international law as a legal basis,

even in part, for grounding their rights to equality in the United States.

Indeed, various forms of these barriers and dangers of basing Blacks‘

rights in whole or in part on international law had confronted Black

folks, and have helped evolve the Black International Tradition from its

inception in the seventeenth century. In other words, under the strong

impulse of race, the Charter ratification by the American government

defined an oppressive distinction. The ―civil rights narrative,‖ to which

under American authority Black legal claims were officially demanded

to be confined, was now to be legally distinct from the ―human rights

narrative,‖ where all official opposition would be levied to prevent

African Americans from seeking freedom from racism by appealing to

human rights doctrines of international law. As other papers in this

Symposium indicate, this race-driven jurisprudential attack has had

profound consequences to the present for African-American legal and

public advocacy.68

65

See id. at xxxviii, xxxix (discussing the U.S. Government‘s concerns with the

ratification of the U.N. Charter), 207 (discussing the Bricker Amendment). 66

See WILLIAMS BIOGRAPHY, supra note 15, at 256. 67

RICHARDSON, supra note 2, at xxxix. 68

See, e.g., Juan F. Perea, An Essay on the Iconic Status of the Civil Rights

Movement and Its Unintended Consequences, 18 VA. J. SOC. POL‘Y & L. 44

(2010) (discussing how the iconic status of the Civil Rights Movement obscures

important history of African-American struggle against white racism); Muriel

Morisey, Fifty Years After the Sit-Ins: Events, Trends, and Recommendations, 18

VA. J. SOC. POL‘Y & L. 82 (2010) (exploring how social reform efforts should

adapt to the increasing number of historically oppressed groups in powerful

government positions); Brenda Saunders Hampden, Stony the Road We Trod:

Reflections on Fifty Years After the Sit-Ins, 18 VA. J. SOC. POL‘Y & L. 3 (2010)

(discussing the author‘s experiences from the sit-ins and civil rights


Some African Americans attempted early on to use the United

Nations as their international legal forum for strengthening their rights in

America and for developing an international human rights basis,

supported by U.N. and international scrutiny, for their freedom from

racism. They were opposed on many levels. Du Bois was ejected from

the NAACP in 1948 over this general issue and his refusal to

subordinate it to official Cold War fears. Such fears included those of

other Black leaders that the nascent Civil Rights Movement would be

officially labeled as ―communist,‖ thus opening the Movement to

additional government intimidation.69

But prior to his ejection, the

NAACP Board authorized the publication under their imprimatur of Du

Bois‘ An Appeal to the World in 1947, and its presentation to both the

U.N. Commission on Human Rights and the U.N. General Assembly.70

The Appeal is a small, powerful book of articles by Du Bois and

other contemporary Black and civil rights leaders.71

It lays down the

composite foundation of the need and the right of African Americans to

petition the United Nations under its Charter for the protection of their

long-deprived rights in America. Rayford Logan‘s article therein on

African-American rights as they sound through Charter rights for the

international protection of minorities is especially pertinent.72

Moreover,

subsequent to his NAACP ejection in 1948, Du Bois traveled the country

lecturing on the Appeal to mostly Black audiences of hundreds and

thousands.73

His warm reception reflected the often bitter divisions

among African Americans over the issues framing his ejection. Further,

Malcolm X supported the framing of the mistreatment of African

Americans within the international human rights context, stating, ―the

American black man needed to recognize that he had a strong, airtight

case to take the United States before the United Nations on a formal

accusation of ‗denial of human rights‘—and that if Angola and South

demonstrations of the 1960s); Taunya Lovell Banks, Thurgood Marshall, the

Race Man, and Gender Equality in the Courts, 18 VA. J. SOC. POL‘Y & L. 15

(2010) (considering how Marshall‘s role as a participant in the Black Civil

Rights Movement influenced his thinking about gender equality). 69

See generally ANDERSON, supra note 60, at 141–47. 70

See generally HORNE, supra note 57. 71

NAACP, AN APPEAL TO THE WORLD: A STATEMENT ON THE DENIAL OF

HUMAN RIGHTS TO MINORITIES IN THE CASE OF CITIZENS OF NEGRO DESCENT IN

THE UNITED STATES OF AMERICA AND AN APPEAL TO THE UNITED NATIONS FOR

REDRESS (1947). 72

Rayford W. Logan, The Charter of the United Nations and Its Provisions for

Human Rights and the Rights of Minorities and Decisions Already Taken Under

this Charter, in AN APPEAL TO THE WORLD, supra note 71, at 85. 73

See HORNE, supra note 57, at 37; see also BRENDA GAYLE PLUMMER, RISING

WIND, BLACK AMERICANS AND U.S. FOREIGN AFFAIRS, 1935–1960, at 179

(1996) (discussing Du Bois‘s efforts to publicize the petition by traveling over

20,000 miles and lecturing in twenty states).


Africa were precedent cases, then there would be no easy way that the

U.S. could escape being censured, right on its own home ground.‖74

Since then only the pioneering work of determined NGOs, such as

the National Conference of Black Lawyers, has wrested some progress

from official opposition, as well as from continuing divisions among

local Black folks on the vital importance of international work. African

Americans, having now incorporated this issue more into mainstream

public narratives from the reputed ―dangerous Black far left,‖ continue

to work to expand their right to freely and effectively make claims to the

human rights narrative, as a foundation for perfecting and expanding

their rights in America in consonance with its national law.

The U.N. Charter struggle continues to have far-reaching

implications, some of which reached through the Civil Rights

Movement. The effort to link African-American rights in America to

minorities‘ rights under international human rights law continues,

against official opposition. U.N. human rights decision makers are

increasingly applying emerging international human rights law to

African-American local conditions. This is in part due to, for example,

mandatory reports by the U.S. government to CERD (the treaty body in

the Convention to Eliminate All Forms of Racial Discrimination), but

also NGOs‘ reports to CERD on issues regarding U.S. obligations under

that Convention, and the opportunities in the United States that it

presents. U.N. Rapporteurs have also helped link international human

rights law to African-American rights in America. For instance, Gay

McDougall, steeped in the civil rights and anti-apartheid movements, has

played a prominent leadership role since the late 1970s in pushing to

expand international human rights law regarding race and minorities,

including to South African liberation, apply it to African-American

conditions, and link the two movements. Such leadership was recently

illustrated, for example, in her current role as U.N. Rapporteur for

Minority Rights. In that capacity she issued a joint statement framing the

prejudicial lack of post-Hurricane Katrina governmental assistance to the

Black citizens of the ninth ward of New Orleans to rebuild their homes

and neighborhood as a violation by the United States of the international

human right to housing.75

The Charter-struggle implications will extend into the future for

African-American rights in the United States. For example, with the

rapid approach of climate change issues, questions about states‘

74

HALEY, supra note 20, at 384. 75

See Press Release, Office of the High Comm‘r for Human Rights, UN Experts

Call on U.S. Government to Halt Ongoing Evictions and to Take Immediate

Steps to Protect the Human Rights of African-Americans Affected by Hurricane

Katrina and the Demolition of Public Housing in New Orleans, Louisiana, U.N.

Doc. OHCHR (Feb. 28, 2008).


responsibility to protect their citizens from the rights-violating

consequences in their territories of global climate change will soon be

upon all states, including the United States. Regarding the role that race

will play in America in decisions ranging from defining such rights and

their beneficiaries to the need for climate change protection, we cannot

assume, even without the Katrina debacle, that race will be absent and

that issues of deprived equity will not arise for African Americans.

When they do arise, one may question whether African Americans can

make claims to extraterritorial assistance and legal doctrines as a matter

of right regarding remedies for shortfalls in their conditions in the United

States. African Americans might look to, for example, the increasingly

substantive obligation on all states of international cooperation in

Articles 55 and 56 of the U.N. Charter.

III. CONCLUSION

The Black International Tradition has been a sustaining element of

African-American History for four centuries. The Tradition framed the

original and continuing African-American interests in making claims to

international law and other outside norms for more equitable

governance. We can in this context identify early mass struggles and

rebellions where slaves, free Blacks, and then African Americans took

both inspiration and models for their own early struggles towards

freedom on this territory. As these struggles moved into the twentieth

century, we can speak of them more directly as part of the historical

input of the Civil Rights Movement, not least regarding the historic work

of Du Bois, Gandhi, King, and the South African ANC. And as the

American Civil Rights Movement unfolded, both members in the

Movement and its enemies and opponents raised questions, for different

purposes, about its international underpinnings and its international

reach by example to those peoples of color seeking freedom in other

lands, including the Movement‘s intersections with the international

peace movement. This reach has occurred notwithstanding much

American official effort to continue to define civil rights as a purely

domestic set of issues, even though they have had constant foreign

policy consequences.

Further, as a consequence of the embedded authority of the Black

International Tradition, and as illustrations of the Tradition‘s evolution,

we can identify at least two major treaties—there may be more—which

served as fulcrums during their respective eras. Around their content and

authority, collective African-American debates swirled about the next

essential political and jurisprudential rights concepts and strategies that

must be adopted to push forward towards liberation. Through identifying

the content of African-American claims to international law regarding

rights protection, we can explore how such treaties influence outcomes

of these important collective Black debates. The Treaty of Berlin helped


frame the last issues in the late nineteenth century around the question of

African emigration and colonization, as it was collectively concluded

that mass African-American emigration back to Africa was not possible.

The U.N. Charter and related treaties continue to frame the question of

whether African-American rights and international outreach are to be

grounded only in American law and policy, or will also be strongly

grounded under international human rights law. There is no more

important legacy of the Civil Rights Movement—a legacy that always

has been but now is recognized as unfolding in a globalized world

community—than its having clarified the great need to understand,

address, and act on this question, as a question of law and justice, so as

to carry the freedom struggle forward.

two treaties, and global influences of the american...

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