Avoiding the Semantic Conundrum of the Race Convention through the Forms of Racial Discrimination

This article examines three key cases decided by the CERD committee to show how the semantic conundrum of the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) becomes an obstacle in extending protection against racial discrimination to various racialised groups. It is argued that the wording of Article 1 of ICERD creates a tripartite classification of semantics, in which meaning generated through different protected grounds obscure the conception of racial discrimination. This places constraints on the Committee's ability to decide in favour of racialised non-citizens. The article proceeds to examine the jurisprudence of direct, indirect and positive discrimination in the context of Article 1. It contends that while the semantic conundrum of ICERD confines racial discrimination to limited grounds, using the forms of discrimination can yield positive results. This is shown by re-examining the three cases, this time using the lens of forms of discrimination. It is argued that this approach can enable the Committee to transcend the semantic conundrum of ICERD and arrive at more nuanced conclusions.