Over the last ten years, social justice has been the cause celebre in the United States. Groups of grassroots activists, in various corners of the social justice universe, have been wont to insist that the grievances they work to address are indeed human rights violations. In light of this framing, it is not surprising that activists also seem keen on using a long-forgotten strategy of the United States Civil Rights Movement: seeking relief under international law. While the emergence of social media has markedly expanded grassroots operations’ ability to mobilize public opinion, in service of expanding the corpus of international human rights law, groups including Black Lives Matter,— which has developed into a fully-fledged transnational advocacy network—continue to find themselves beset by some of the international legal order’s fundamental rules and realities. In order to aid those hoping to avail themselves  of the newly expanded body of international human rights law, this paper will examine how the structural and technical aspects of the international legal rules on the determination of juridical personality interacted with the indictment that Minister El-Hajj Malik El-Shabbazz (hereinafter: “Malcolm X” or “Shabazz”) made in his famous, “The Ballot or The Bullet,” speech.

            On April 4, 1964, amidst and inspired by the growing number of anti-imperialist movements that arose out of the ongoing decolonization of Africa, Shabazz gave his landmark speech, “The Ballot or The Bullet”. Shabazz's incisive and expertly-delivered indictment spared neither the United States government nor citizens who directly or indirectly supported its policies. He restyled himself as a “revolutionary Black freedom fighter” advancing a doctrine of “Black Nationalism1 [1],2 [2]” in service to Afro-Americans who were, in fact, a part of a global nation of Africans3[3] that were captive within the United States” and had yet to recognize and assert themselves as such “politically, economically, and socially.” Moreover, Shabazz argued, the government’s failure to check racial abuse of Afro-Americans at the hands of white citizens, its occasional complicity[4], and its complacency with respect to structural racism in the government amounted to a willful and racist withholding of Afro-Americans’ political, economic, and social self-determination; the very actions that the international community was beginning to acknowledge as imperialist deprivations of human rights. This reframing of the elements of the United State’s racism, in terms of the nascent philosophy of human rights, had two effects. First, it brought the international public’s attention to the absurd hypocrisy of the U.S.’ practice of presenting itself as the world’s exemplar of political enlightenment5,[5] while engaging in “twenty-first-century slavery6,”[6] at home. Second, it recast the Civil Rights Movement as an international human rights crisis7[7] and ennobled its leaders.

                                                                                    Legal Analysis

            Despite the internal coherence of Min. Shabazz’s political philosophy and the congruence of his motivations with the aims of international human rights law, he still depended on member-states of the Organization of African Unity (OAU) to advance a claim of human rights abuse on behalf of Afro-Americans later that summer8[8],9[9].  His chances at successfully bringing the United States up on charges in the United Nations General Assembly were slim, already, due to the narrowness of the doctrine of self- determination and the international legal system’s inability to recognize him or the United States’ Afro-American population as subjects of international law.  Taken together, these two circumstances ensured that it would be impossible for Shabazz or the U.S. Afro-American population to access international legal supports without an intercessor. Here, we will further examine both of these bedeviling issues in the context of Min. Shabazz’s and the larger Afro-American community’s circumstances.

                                   Contemporary State Recognition Practice and its Provenance

            All subjects of international law derive their juridical personhood from their association with a state, an important legacy of the Peace of Westphalia. The Peace of Westphalia of 1648 established the modern international, by granting states equality, exclusive territorial control, and governmental control. Indeed, classical international law held states as its primary subjects. The new system of Westphalian sovereignty gave an added degree of clarity to this definition of statehood and presented two separate theories of state recognition that would further elucidate the concept. The first and simpler of the two theories is known as the “constitutive theory” and holds that a state may only be recognized if at least one other state recognizes it. The second theory, which is codified by Article 1 of the Montevideo Convention on the Rights and Duties of States10[10], is referred to as the “declarative theory” and stipulates that a state achieves legal personhood when it possesses a defined territory, a permanent population, a government, and a capacity to enter into relations with other states. In practice, both of these theories are used when states decide whether to grant recognition, with states using Art. 1 of the Montevideo Convention as a litmus test before looking to more subjective, often self-defined questions of legitimacy. 

            It is apparent that, under the Montevideo Test, neither Malcolm X nor the United States’ Afro-American population, would have qualified as subjects of international law, but why an appeal to self-determination was also not a viable option, is less so.  Enshrined in the United Nations Charter and expounded upon in the Declaration on the Granting of Independence to Colonial Countries and Peoples, self-determination  refers to, “the legal right to determine…destiny in the international order” and arose out of customary international law to become a jus cogens norm, two important distinctions that we will return to later in this analysis11.[11]  Self-determination exists in two dimensions: one internal and one external. Internal self-determination refers to an individual’s entitlement to political and social rights in their home country, while external self-determination, the goal of Shabazz’s campaign, refers to a people’s entitlement to independence or secession from a larger socio-political whole12.[12] Congruent to the Westphalian system, the international legal regime interprets self-determination in a way that privileges the creation of new states over interference in the domestic affairs of those which already exist, rendering self-determination a political tool used in the implementation of decolonization. The clearest example of this being the so-called “Blue Water Rule” or “Belgian Thesis”, which the U.N. announced on December 16, 1952, in United Nations Resolution 637 (VII). The declaration limited decolonization to those territories that were “ethnically distinct” and separated from their colonizer by an ocean or, “a geographically discrete set of boundaries13,”[13]  a test that the United States Afro-American community could only partially satisfy. The United States lobbied for the adoption of the Belgian Thesis in order to ensure that they could limit decolonization under favorable terms14.[14] Also, the United States sought to confirm that more problematic approaches, such as the pigmentation test15[15], would not be actionable and the groups who relied upon them would continue to be of dubious legal personality. 

                                                                                      Denouement

            In the months of July and August 1964, following a brief trip back home, Shabazz returned as the head of his non-government organization, the Organization of African American Unity (OAAU).  He visited, amongst other states, Egypt, Ethiopia, Nigeria, Ghana, Guinea, Sudan, Senegal, Liberia, Algeria, and Morocco. His most important stop was in Cairo, where he attended the second meeting of the OAU as an observer. Despite his observer status, the OAU allowed Shabazz to present his concerns to this body of 33 heads of states. In keeping with his Pan-Africanist strategy, he exhorted the members gathered at the OAU meeting in Cairo to take up the cause of the U.S. Afro-Americans. He worked, just as hard in the United States, to cultivate a partnership, arguing that since Afro-Americans were descended from people who were, “kidnapped and brought”16[16] from Africa, Afro-Americans should regard themselves as Africans. Moreover, he openly derided integrationists and Afro-Americans that embraced their dual heritage as misguided individuals who thought that they, “came over…on the Mayflower17.”[17]  

            Shabazz’s rather naked attempt at challenging the Blue Water Thesis, via a coalition of newly decolonized states, did not go unnoticed by the press or the government. His assertion that, “if South African racism is not a domestic issue, then American racism also is not a domestic issue” rankled the United States Department of State. As18[18] the New York Times noted, in an August article in 1964, “if Malcolm succeeded in convincing just one African Government to bring up the charge at the United Nations, the United States Government would be faced with a touchy problem19.”[19] No one was more aware of this than the U.S. Department of State, whose misgivings were not completely without merit. According to Shabazz in a letter addressed to a friend in the U.S., he had received a number of “promises of support,” with Tanzania ultimately acting as a surrogate for Shabazz in the OAU20.[20] Having already earned the attention of the United States’ Federal Bureau of Investigation (F.B.I.), at home21,[21] for his tenure as Elijah Muhammed’s second-in-command in the Nation of Islam, Shabazz’s foray into international politics brought on the scrutiny from the United States Central Intelligence Agency (C.I.A.). His campaign would ultimately end on February 21, 1965, when he was tragically shot to death in Harlem’s Audobon Ballroom, while delivering a speech. Although he did not succeed in re-opening the conversation on the self-determination of peoples, Shabazz’s campaign set the stage for contemporary international advocacy of groups, like the Black Panthers, and individuals such as the international law scholar, Randall Robinson, who continue to push for this goal. 

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                                                                                      END NOTES

 

[1] The Encyclopedia Britannica describes Black Nationalism aptly: “[a] political and social movement prominent in the 1960s and early ’70s in the United States among some African Americans,” but a more thorough explanation of its development can be found in Wikipedia’s entry on the topic. See, Britannica, The Editors of Encyclopaedia. “Black Nationalism.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 13 Dec. 2016, www.britannica.com/event/blackAnationalism. See also, “Black Nationalism.”

Wikipedia, Wikimedia Foundation, 30 Dec. 2018, en.wikipedia.org/wiki/Black_nationalism.

[2]  In explaining his meaning of the term Shabazz states that, “The political philosophy of Black Nationalism only means that the black man should control the politics and the politicians in his own community; … that … [w]e must understand the politics of our community and we must know what politics is supposed to produce; [and] [w]e must know what part politics play in our lives. So the political philosophy of Black Nationalism only means that we will have to carry on a program, a political

program, of re-education to open our peoples eyes, make us become more politically conscious, politically mature, and then whenever we get ready to cast our ballot that ballot will be cast for a man of the community who has the good of the community of heart. The economic philosophy of Black Nationalism only means that we should own and operate and control the economy of our community [;] that we have to [know] that when you spend your dollar out of the community in which you live, the community in which you spend your money becomes richer and richer; the community out which you take your money becomes poorer and poorer.” See, Shabazz, Malik (Malcolm X). “The Ballot Or The Bullet Full Transcription.” CSULA Philosophy Club, 2016, csulaphilsophyclub.files.wordpress.com/2016/02/the-ballot-or-the-bullet.pdf.

[3] This is a core tenet of the political philosophy of Pan-Africanism, which is strictly defined as, “the principle or advocacy of the political union of all the indigenous inhabitants of Africa” and more loosely as, “a worldwide movement that aims to encourage and strengthen bonds of solidarity between all people of African descent.” See, “Pan-Africanism.” New Oxford American Dictionary, Oxford, 2014. See also, “Pan-Africanism.” Wikipedia, Wikimedia Foundation, 12 Jan. 2019, en.wikipedia.org/wiki/Pan-Africanism.

[4] In the United States, it is popular to dismiss claims of government collusion with racists as mere conspiracy theories, but instances of the federal government acting purposefully, via willfully neglectful policy construction and in other ways that harm Afro-Americans, is well documented prior to and after 1964. For example, in 1921, under the Hoover Administration, the United States National Guard joined local police and a frenzied lynch mob in the firebombing of the thriving Black neighborhood of Greenwood (also called Black Wall Street) in Tulsa, Oklahoma. Over a decade later, Franklin Roosevelt, in a bid to retain the support of southern voters, excluded sharecroppers and domestic workers sectors of the workforce that were overwhelmingly Afro-American from the Social Security Act of 1935. See, Oklahoma Commission (February 28, 2001), "Final Report" (PDF), Oklahoma Commission to Study the Tulsa Race Riot of 1921, Tulsa, Oklahoma, retrieved June 20, 2018. Also, See, DeWitt, Larry. “Social Security Administration.” Reports, Facts, and Figures | Press Office | Social Security Administration, Social Security Administration, 1 Nov. 2010, www.ssa.gov/policy/docs/ssb/v70n4/v70n4p49.html.

[5] A New York Times article from August of 1964 stated that, “if Malcolm succeeded in convincing just one African Government to bring up the charge at the United Nations, the United States Government would be faced with a touchy problem”, namely the problem of the United States finding “itself in the same category as South Africa, Hungary and other countries whose domestic politics have become debating issues at the United Nations..”, which officials believed would have been, “of service to critics of the United States, Communist and non-Communist,…” and would have, “contribute[d] to the undermining of the position that the United States ha[d] asserted, for itself as the leader of West in the advocacy of human rights.” See, New York Times Archives. “Malcolm X Seeks U.N. Negro Debate; He Asks African States to Cite U.S. Over Rights.” August 13, 1964.

[6] See Shabazz, supra

[7] Andre Elizee of the Schomburg Center in Harlem, New York notes that the Organization of African-American Unity‘s purpose is to “broaden…”

“broaden the scope of the African-American civil rights movement into a

struggle for human rights with international linkages. See, Elizee, Andre. Schomburg

Center New York Public Library, 2002, archives.nypl.org/uploads/collection/pdf_finding_aid/malcolm_x.pdf.

[8] In a brief to the OAU, Shabazz made the following appeal, “We, in America, are your long lost brothers and sisters, and I am here to remind you that our problems are your problems. … Your problems will never be fully solved until and unless ours are solved. You will never be fully respected until and unless we are also respected. You will never be recognized as free human beings until and unless we are also recognized and treated as human beings. If the United States Supreme Court Justice Arthur Goldberg a few weeks ago, could find legal grounds to threaten to bring Russia before the United Nations and charge her with violating the human rights of less than three million Russian Jews, what makes our African brothers hesitate to bring the United States Government before the United Nations and charge her with violating the human rights of 22 million African-Americans? … We pray that our African brothers have not freed themselves of European colonialism only to be overcome and held in check by American dollarism. Don't let American racism be ’legalized’ by American dollarism.” See, Shabazz, Malik. “Memo Submitted to the OAU.” Road to Pan-Africanism, www.panafricanperspective.com/mxatoau.html.

[9] Recently, Professor Philip Alston, the United Nations Special Rapporteur on extreme poverty and human rights, has also noted in his “Statement on Visit to the USA, ”that the poverty in rural Alabama constitutes a human rights crisis; so, one could only imagine what it was in the mid-1960s”. See, Alston, Philip. “Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on Extreme Poverty and Human Rights*.” United Nations Office of the High Commissioner, United Nations Office of the High Commissioner , 15 Dec. 2017, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22533.

[10] Montevideo Convention on the Rights and Duties of States, 165 L.N.T.S. 19, art 1

[11] See, “United Nations Charter”, “International Covenant on Civil and Political Rights”, “International Covenant on Economic, Social, and Cultural Rights" and “Declaration on the Granting of Independence to Colonial Countries and Peoples”; see also,  “Self Determination (International Law).” Determia Mamlyuk, Boris. Legal Information Institute, Legal Information Institute, 12 June 2015, www.law.cornell.edu/wex/self_determination_%28international_law%29.

[12] Ibid

[13] See, United Nations Resolution 637 (VII)

[14] U.N. Resolution 637 (VII):. When Belgium agreed to relinquish its colonial dominions, it attempted to expand self-determination to peoples whose degree of subordination placed them in a colonized situation. Belgium cited the United States’ Native American population, which caused the U.S. to raise support from other states with subjugated indigenous populations. The resolution codifying the Blue Water Test passed easily. Diaz, Javier. “Minority Rights.” Minority_Right To Self Determination 1, 2002, www.javier-leon-diaz.com/docs/Minority_Status1.htm.

[15] This test would have limited self-determination to black freedom from white rule. See, Titanja, Edward. “The Right of Indigenous Peoples to Self-Determination versus Secession: One Coin, Two Faces?” African Human Rights Law Journal, vol. 9, no. 1, 2009, pp. 52–75

[16] See, “The Ballot Or The Bullet Full Transcription.” supra

[17] Ibid

[18] See, New York Times Archives. “Malcolm X Seeks U.N. Negro Debate; He Asks African States to Cite U.S. Over Rights.” August 13, 1964.

[19] Namely the problem of the United States finding “itself in the same category as South Africa, Hungary and other countries whose domestic politics have become debating issues at the United Nations..”, which officials believed would have been, “of service to

critics of the United States, Communist and non-Communist,…” and would have,

“contribute[d] to the undermining of the position that the United States ha[d]

asserted, for itself as the leader of the West in the advocacy of human rights.” Ibid

[20] Professor Azaria Mbughuni of Spelman University, notes “[t]he passing of the resolution was a momentous achievement for Malcolm and for Africa… [f]or the resolution linked up African people in Africa with African-Americans and helped broaden the scope of the struggle against racism that had mostly focused on apartheid, in South Africa, at the time.” See, Mbughuni, Azaria. “Malcolm X, the OAU Resolution of 1964, and Tanzania: Pan-African Connections in the Struggle Against Racial Discrimination .” The Journal of Pan -African Studies, vol. 7, no. 3, 2014.

[21] Lipton, Beryl. “Looking Back at Malcolm X's FBI File on His 90th Birthday.” MuckRock, 19 May 2015, www.muckrock.com/news/archives/2015/may/19/malcolmExEnintiethEbirthday/.And New York Times Archive supra

​

                                                                                    REFERENCES

 1. Alston, P. (2017). “Statement on Visit to the USA". Available at:                      

                  http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22533.

2. DeWitt, L. (2010). “Social Security Administration.”. Available at:               

                  http://www.ssa.gov/policy/docs/ssb/v70n4/v70n4p49.html.

3. Diaz, J. (2002). “Minority Rights.”. Available at: http://www.javier-leon-diaz.com/docs/Minority_Status1.htm.

4. Elizee, A. (2002). Available at: http://archives.nypl.org/uploads/collection/pdf_finding_aid/malcolm_x.pdf.

5. Encyclopædia Britannica, Inc (2016). Black Nationalism. Available at:    

                 https://www.britannica.com/event/black-nationalism.

6. Lipton, B. (2015). “Looking Back at Malcolm X's FBI File on His 90th Birthday.”. Available at:

                http://www.muckrock.com/news/archives/2015/may/19/malcolmExEnintiethEbirthday

7. Mamlyuk, B. (2015). Legal Information Institute. Available at:               

                http://www.law.cornell.edu/wex/self_determination_%28international_law%29.

8. Montevideo Convention on the Rights and Duties of States.165 L.N.T.S. 19, art 1.

9. Mbughuni, A. (2014). “Malcolm X, the OAU Resolution of 1964." Pan African Studies.

10. New Oxford American Dictionary (2014). “Pan-Africanism.”. Oxford.

11. New York Times (1964). “Malcolm X Seeks U.N. Negro Debate; He Asks African States to Cite U.S. Over Rights.”. New York

                Times Archives.

12. Shabazz, M. (2019). Road to Pan-Africanism. Available at: http://www.panafricanperspective.com/mxatoau.html.

13. Shabazz, Malik (Malcolm X) (2016). Available at: http://csulaphilsophyclub.files.wordpress.com/2016/02/the-ballot-or-the-

                bullet.pdf.

14. Titanja, E. (2009). “The Right of Indigenous Peoples to Self-Determination versus Secession: One Coin, Two Faces?”. 9th ed.

               African Human Rights Law Journal, pp.52–75.

15. United Nations Resolution 637. (VII).

16. Wikipedia (2019). Black Nationalism. Available at: http://en.wikipedia.org/wiki/Black_nationalism.

17. Wikipedia (2019). “Pan-Africanism.”.  Available at: http://en.wikipedia.org/wiki/Pan-Africanism.