132 COLUM. J. RACE & L. [Vol. 11:83 racial discrimination is a jus cogens norm often unaccompanied by any analysis of what that exactly means.213 The Restatement (Third) of the Foreign Relations Law of the United States defines jus cogens norms to include, among others, the prohibitions against genocide; slavery or slave trade; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and “a consistent pattern of gross violations of internationally recognized human rights.”214 Scholars tend to cite this influential statement, together with a handful of ICJ and regional decisions, to establish the jus cogens status of racial discrimination (or systemic racial discrimination). While majority opinions of the ICJ have dealt only intermittently and sparingly with jus cogens norms directly, 215 the majority judgment of the court in the seminal Barcelona Traction216 case has formed the foundation for many scholars’ understanding of jus cogens norms.217 Drawing a distinction between obligations owed by a state vis-a-vis another state and those owed to the international community as a whole and supporting a public order theory of jus cogens, 218 the court in Barcelona Traction noted that due to the “importance of the rights involved,” obligations owed to the community as a whole are seen to be obligations erga omnes, meaning where “all States can be held to have a legal interest in their protection.” 219 The court listed among these obligations the protection from and prohibition against racial discrimination. 220 In the ICJ’s 1971 advisory 213 See sources cited supra note 212. 214 Restatement (Third) of the Foreign Relations Law of the United States § 702 (Am. L. Inst. 1987). See also id. § 102; Evan J. Criddle & Evan FoxDecent, A Fiduciary Theory of Jus Cogens, 34 YALE J. INT’L L. 331 (2009). 215 Dire Tladi (Special Rapporteur), First Report on Jus Cogens, ¶¶ 44– 47, U.N. Doc. A/CN.4/693 (Mar. 8, 2016) (noting that there have been eleven references to jus cogens norms in majority judgments by the ICJ, all of which “have assumed (or at least appear to assume) the existence of jus cogens as part of modern international law.”). 216 Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), Judgment, 1970 I.C.J. 3 (Feb. 5) [hereinafter Barcelona Traction]. 217 See THOMAS WEATHERALL, JUS COGENS: INTERNATIONAL LAW AND SOCIAL CONTRACT 240 (2015). 218 Criddle & Fox-Decent, supra note 214, at 344. 219 Barcelona Traction, supra note 216, ¶ 33. While obligations erga omnes and jus cogens are different concepts, Special Rapporteur, Third Report on Jus Cogens, supra note 196, ¶ 111, contends that the two are interconnected in that “peremptory norms of general international law (jus cogens) establish obligations erga omnes, the breach of which concerns all States.” 220 Barcelona Traction, supra note 216, ¶ 34. See also id. at 289, 304 (separate opinion of Ammoun, J.) (“[T]he principle of equality and that of non-