U.S. CERD Obligations and

    Domestic Implementation

    —Article 2—

    Response to the Periodic Report of the United States to the United Nations Committee on the Elimination

    of Racial Discrimination

    February 2008

    Prepared by:

U.S. Human Rights Network’s CERD Working Groups on Local Implementation

    and Treaty Obligations, composed of Tara J. Melish, Cynthia Soohoo, Theresa Harris, Nancy Bothne, Ramona Ortega, Ejim Dike, Penny Venetis, Ann Fagan

    Ginger, Adam Shearer, Brian Gladstein, and Curtis Cooper

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    A Report to the

    Committee on the Elimination of Racial Discrimination on:

    U.S. CERD Obligations and Domestic Implementation

    —Article 2—

    Submitted December 10, 2007

    EXECUTIVE SUMMARY

    As reflected in the accompanying alternative reports submitted by U.S. civil society, the United States has failed to take adequate measures, consistent with CERD article 2, to ensure that the provisions of CERD have domestic legal effect in the internal jurisdiction. This report analyses that failure along five key lines, each summarized below. Each of these, it is concluded, can be traced to the lack of any comprehensive human rights coordination in the United States, and the lack of a body or bodies at both the national and state levels with powers to monitor treaty implementation, issue recommendations to a range of authorities, collect and assess statistics, hold thematic hearings, and undertake promotional and educational initiatives throughout the nation.

    1. The U.S. has failed to adopt appropriate implementing legislation to give treaty

    guarantees domestic legal effect.

    Although Article VI of the U.S. Constitution incorporates international treaties as part of ―the supreme Law of the Land,‖ binding on all local, state and federal authorities, the U.S. ratified the CERD with an understanding that the treaty was ―non-self-executing.‖ As a result, domestic

    courts cannot invoke the CERD for purposes of directly enforcing its provisions or, consistent with articles 2 and 6, providing legal remedies to victims of its violation. The U.S. has not, moreover, adopted any specific implementing legislation that would give the treaty’s provisions domestic legal effect and allow its provisions to be enforced by domestic actors, including through statutory causes of action.

    2. The U.S. has failed to systematically review government policies and practices, and

    with the full participation of civil society partners, to identify gaps in protection and

    to monitor levels of compliance, including at the state and local levels.

    Meaningful implementation of CERD requires a permanent institutional mechanism to monitor domestic compliance with the CERD, conduct awareness-raising on it, and ensure that treaty commitments are in fact being fulfilled by federal, state, and local authorities. It also requires a process for review of existing and new legislation and policy, at the federal, state and local levels. However, the United States lacks any national mechanism to review systematically government policies and practices for compliance with the CERD.

    3. The U.S. has failed to oversee, coordinate and facilitate compliance initiatives at the

    state and local levels.

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    The U.S. has an obligation to take appropriate measures to implement the CERD at the state and local levels. However, the U.S. report does not adequately report on CERD implementation at the state and local level, as requested by the Committee. This omission results in part from the lack of permanent institutional mechanisms to monitor domestic compliance by state and local authorities. The United States has, accordingly, failed to oversee and promote compliance initiatives at every level of the nation’s governmental structures, in function of federalism principles.

    4. The U.S. has failed to raise public awareness of the Convention’s guarantees.

    Directly related to the need for a comprehensive system of collecting information from the states is the need to actively promote understanding of CERD obligations to state officials, as well as federal agencies, judges, and the general public. Domestic implementation of the CERD’s obligations relies on public knowledge about the treaty and the rights it protects. The U.S. has failed in this respect by not educating government officials, judges, or the public about the Convention’s obligations.

    5. The U.S. has failed to review its reservations, understandings and declarations

    (RUDS) to determine their continuing necessity or relevance.

    Although the Policy Coordination Committee on Democracy, Human Rights, and

    International Operations has a mandate to oversee an annual review of U.S. reservations, declarations, and understandings (RUDS) to human rights treaties to determine their continuing relevance, no effort has been domestically publicized or reported to the Committee that the U.S. government has undertaken any such review. This type of review is an essential tool for progressing toward a more sophisticated understanding of the governmental actions needed to implement the treaty’s standards.

RECOMMENDATIONS

    To address these failures and to comply with the obligations the U.S. assumed upon ratification of the CERD, the U.S. should adopt specific implementing legislation that would allow victims of human rights violations to claim violation of their CERD-protected rights before state and federal courts. The U.S. needs a comprehensive system for monitoring compliance with CERD obligations and reviewing the Committee’s concluding observations and recommendations. The role of state human rights commissions needs to be considered, as well as the possibility of a national human rights commission with a mandate to monitor compliance with human rights treaties, including CERD. Initiatives focused on state and local implementation of and compliance with the CERD’s provisions are needed, particularly state and

    local human rights commissions. Finally, greater public education efforts on the CERD should be undertaken, including training for government officials, judges, and legislators.

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    A Report Submitted by U.S. Civil Society to the

    Committee on the Elimination of Racial Discrimination:

    United States Treaty Obligations under CERD:

    Domestic Implementation of Treaty Norms

    —Article 2—

    December 10, 2007

I. Introduction

    When the United States ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) on October 21, 1994, it committed to condemn racial discrimination and to ―pursue by all appropriate means and without delay a policy of eliminating 1racial discrimination in all its forms and promoting understanding among all races.‖ To

    implement this policy, the federal government committed to ―engage in no act or practice of racial discrimination‖ and to ―prohibit and bring to an end, by all appropriate means, . . . racial 2discrimination by any persons, group or organization.‖ Most importantly, it committed to

    ―ensure that all public authorities and public institutions, national and local, shall act in 3conformity with this obligation‖ and to ―take effective measures to review governmental,

    national and local policies, and to amend, rescind or nullify any laws and regulations which have 4the effect of creating or perpetuating racial discrimination wherever it exists.‖

    As the alternative reports submitted by U.S. civil society make clear, the United States has failed to give meaningful legal effect to the substantive provisions of CERD and to eliminate racial discrimination within its jurisdiction through all appropriate means. While reports authored by other civil society groups look at the United States’ specific failures to give legal

    effect to the rights recognized in articles 3 through 7 of the Convention—i.e., those protecting

    the right to be free from discrimination in the exercise of the full scope of civil, economic, cultural, political and social rights—this report looks more broadly at the U.S. failures to ensure that the treaty is meaningfully implemented throughout its jurisdiction, including at the state and local levels.

    These failures can be divided into five major types:

    ; failure to adopt appropriate implementing legislation to give treaty guarantees

    domestic legal effect;

     1 CERD, art. 2(1), 660 U.N.T.S 195, entered into force Jan. 4, 1969. 2 Id. art. 2(1)(a), (d). It likewise committed not to ―sponsor, defend or support racial discrimination by any persons or organizations.‖ Id. art. 2(1)(b). 3 Id. art. 2(1)(a) (emphasis added). 4 Id. art. 2(1)(c) (emphasis added).

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    ; failure to systematically review government policies and practices and, with the full

    participation of civil society partners, identify gaps in protection and monitor levels

    of compliance, including at the state and local levels;

    ; failure to oversee, coordinate, and facilitate compliance initiatives at the state and

    local levels, in function of federalism principles;

    ; failure to raise public awareness of the Convention’s guarantees; and

    ; failure to review U.S. reservations, understandings and declarations (RUDS) to

    determine their continuing necessity or relevance.

    Each of these omissions can be traced to the lack of any comprehensive human rights coordination in the United States, and the lack of a body or bodies at both the national and state levels with powers to monitor treaty implementation, issue recommendations to a range of authorities, collect and assess statistics, hold thematic hearings, and undertake promotional and educational initiatives throughout the United States.

    II. The United States has failed to take appropriate measures to give domestic legal

    effect to the CERD through the adoption of appropriate implementing legislation

    Although Article VI of the U.S. Constitution incorporates international treaties as part of ―the supreme Law of the Land,‖ binding on all local, state and federal authorities, the U.S. 5 Given this, ratified the CERD with an understanding that the treaty was ―non-self-executing.‖

    domestic courts cannot directly invoke the CERD for purposes of enforcing its provisions or, 6consistent with articles 2 and 6, providing legal remedies to victims of its violation.

    Rather, direct legal effect can be given to CERD provisions only through independent 7implementing legislation understood to cover the terms of CERD. The U.S. has not, however,

    adopted any such implementing legislation over the thirteen years since it ratified the treaty. Indeed, in its 2001 Concluding Observations on the United States’ report, this Committee

    correctly noted ―the absence of specific legislation implementing the provisions of the Convention in domestic laws,‖ and recommended that the U.S. take the necessary steps ―to ensure the consistent application of the provisions of the Convention at all levels of 8government.‖ In response to the Committee’s concerns, the U.S. has responded that it ―has

    taken, and continues to take, necessary measures to ensure the application of the provisions of

     5 140 CONG. REC. S7634-02 (daily ed., June 24, 1994) (United States Reservations, Declarations, and Understandings, International Convention on the Elimination of All Forms of Racial Discrimination) [hereinafter U.S. RUDs to CERD], ? III. 6 CERD article 6 requires States Parties to ―assure to everyone within their jurisdiction effective protection and

    remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.‖ 7 Technically, the CERD can be given indirect effect through independent statutory or common law causes of action that are interpreted for consistency with the treaty, under the Charming Betsy doctrine. Nonetheless, the U.S. has

    made no effort to educate judges about the binding nature of the CERD and the appropriateness of taking it into account in state and federal judicial decisionmaking. See discussion in Part V.B infra. 8 Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, U.N. Doc. CERD/C/59/Misc.17/Rev.3 (2001) [hereinafter ―Concluding Observations‖], ? 11.

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     9 the Convention at all levels of government, consistent with the U.S. constitutional structure.‖

    Nowhere in the report, however, does the U.S. point to a single law or policy adopted for the specific purpose of implementing CERD obligations. Rather, the U.S. report focuses on laws implementing the U.S. constitutional provisions prohibiting certain types of racial discrimination.

    While U.S. constitutional guarantees provide important safeguards against racial discrimination, they do not protect against all forms of discrimination prohibited by the CERD. It is this gap in protection between the U.S. Constitution, intended as a minimum floor of protection for individual rights, and the more expansive CERD guarantees, which the U.S. has recognized as a matter of federal treaty law, that requires immediate correction. Current U.S. statutory law simply has not been updated to reflect the protections of the CERD. The evidence of continuing racial discrimination in the U.S. provided to this Committee in the accompanying reports, as well as the lack of effective remedies for it, strongly undermines the Government’s

    assertion that no implementing legislation is needed.

     So long as legal remedies for all violations of CERD’s protections are not available within the U.S., full implementation of the Convention will remain elusive. The Committee should reiterate its recommendation that the U.S. adopt specific implementing legislation for the CERD, and that civil society be involved in the process of identifying areas where such legislation is needed.

    III. The United States lacks any national mechanism to systematically review government

    policies and practices for compliance with the CERD

    Meaningful implementation of CERD requires a permanent institutional mechanism to monitor domestic compliance with the CERD, conduct awareness-raising on it, and ensure that treaty commitments are in fact being fulfilled by federal, state, and local authorities. It also requires a process for review of existing and new legislation, policies and practices, at the federal, state and local levels. Such monitoring and oversight would reveal when new measures were required to ensure the right to non-discrimination, opening the door to a process of domestic debate to determine the best means to implement the treaty.

     This Committee previously noted the positive development of the Interagency Working Group on the Implementation of Human Rights Treaties, created in 1998 by Executive Order 1013107. The Interagency Working Group was mandated to undertake a variety of coordination and oversight functions vis-à-vis the federal government, including overseeing a review of all proposed legislation to ensure its conformity with international human rights obligations and ensuring that all non-trivial complaints or allegations of inconsistency with or breach of international human rights obligations are reviewed to determine whether any modifications to 11U.S. practice or laws are in order. The Interagency Working Group’s mandate did not include 12specific directives to monitor, facilitate and promote state and local compliance.

     9 See e.g., U.S. Fourth Periodic Report, ? 310. 10 Concluding Observations, ??7, 23. 11 Executive Order 13,107, ??2-4, Fed. Reg. 68,991 (1998), 38 ILM 493 (1999). 12 The full list of its mandated functions include:

    ; Maintaining among all executive departments and agencies ―a current awareness of United States

    international human rights obligations‖ relevant to their functions, and ensuring that such functions are

    performed ―so as to respect and implement those obligations fully‖;

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    Despite its promise, the Interagency Working Group was never, however, operationalized. In February 2001, several months before the Committee issued its Concluding Observations to 13the United States, President George W. Bush abolished the Working Group. The formal

    functions of the Working Group were transferred to a Policy Coordination Committee (PCC) on Democracy, Human Rights, and International Operations, an ad-hoc body to be directed by the Assistant to the President for National Security Affairs under the Presidential National Security Council. The United States’ Fourth Periodic Report states that the PCC now coordinates U.S. treaty reporting activity and provides a point of contact for U.S. agencies regarding treaty-related discussions at the United Nations, but does not explain how the PCC is furthering implementation of the CERD, whether the PCC has been granted any specific powers enabling it 14to implement human rights treaties, or ―the impact of its activities.‖

    Unfortunately, the PCC has never implemented the mandates in Executive Order 13107. The PCC was non-operational until 2003 when it came together in an ad hoc manner to deal with 15the United States’ overdue treaty reports. Without dedicated staff and resources for human

    rights treaty monitoring, it has functioned only to prepare periodic reports for treaty body consumption and to otherwise coordinate the external presentation of U.S. government engagements with international bodies. As discussed below in Section V, no meaningful actions have been undertaken to inform the U.S. public about U.S. treaty obligations, promote awareness within the various levels of government about those obligations, or coordinate a systematic review of domestic legislation to ensure its conformity with the CERD. The PCC remains the only federal body charged even minimally with overseeing U.S. obligations under the CERD. The internal obligations of the U.S. under the CERD are thus not being fulfilled.

    Given the failure of the PCC to assist in the meaningful implementation of the treaty at the domestic level, the U.S. should develop a comprehensive system to integrate its CERD obligations (as well as those in other human rights treaties) into its federal, state, and local policy and legislation. A system for implementing the Committee’s concluding observations and

    ; responding to inquiries, requests for information and complaints about violations of human rights

    obligations that fall within each authority’s areas of responsibility;

    ; coordinating the preparation of treaty compliance reports to the UN, OAS, and other international

    organizations;

    ; coordinating responses to contentious complaints lodged with the same organizations;

    ; overseeing a review of all proposed legislation to ensure its conformity with international human rights

    obligations;

    ; ensuring that plans for public outreach and education on human rights provisions in treaty-based and

    domestic law are broadly undertaken;

    ; ensuring an annual review of U.S. reservations, declarations, and understandings to human rights

    treaties; and

    ; ensuring that all non-trivial complaints or allegations of inconsistency with or breach of international

    human rights obligations are reviewed to determine whether any modifications to U.S. practice or laws

    are in order. Id. 13 President George W. Bush, National Security Presidential Directive-1: Organization of the National Security Council System, February 13, 2001 (abolishing the system of Interagency Working Groups established under the Clinton administration). 14 U.S. Fourth Periodic Report, ?352, in response to Concluding Observations, ?23. 15 See Tara J. Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies, in THE

    SWORD AND THE SCALES: THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS (ed., Cesare Romano,

    2008), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1001328>.

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    recommendations should also be established to ensure continuing progress toward the goals of eliminating racial discrimination embodied in the CERD. In developing such a system, the U.S. should consider the creation of institutions that (1) monitor CERD compliance, review legislation and recommend appropriate policy modifications, (2) have the power to oversee and encourage compliance at the state and local level, and (3) have sufficient staff and resources to achieve their mandate. In this regard, the U.S. should consider the possibility of developing a National Human Rights Commission in addition to strengthening the institutional framework of the Inter-Agency Working Group or Policy Coordination Committee. If the PCC mandates set forth in Executive Order 13107 are extended, they should be explicitly expanded to include sufficient powers to monitor, facilitate and encourage state and local compliance with the terms of the CERD. The state and local issue is addressed in more detail in the next section.

    IV. The United States has failed to take appropriate measures to oversee, promote, and

    coordinate CERD compliance initiatives at the state and local levels

    In ensuring that the provisions of the CERD have domestic effect, the U.S. has an obligation to take appropriate measures with respect to implementation at the state and local levels. Indeed, in ratifying the CERD, and thereby committing to give it legal effect throughout the domestic jurisdiction, the United States attached a ―federalism understanding‖ to the treaty. That understanding affirmed that the Federal Government shall implement the Convention ―to the extent that it exercises jurisdiction over the matters covered therein.‖ Otherwise, the treaty shall be implemented by the state and local governments. In this latter case, however, the Federal Government expressly assumes the obligation to, ―as necessary, take appropriate measures to 16 Importantly, this view ensure the fulfillment of the Convention‖ by state and local authorities.

    is consistent with the Committee’s position that ―irrespective of the relationship between the federal authorities on one side, and the states, having extensive jurisdiction and legislative powers on the other, with regard to its obligation under the Convention, the Federal Government 17has the responsibility to ensure its implementation on its entire territory.‖

    By ratifying the CERD, the United States formally recognized the supervisory and facilitative responsibility of the Federal Government over local and state jurisdictions in implementing the CERD. Article 2(1) of the CERD expressly obligates the United States not only to ―ensure that all public authorities and public institutions, national and local, shall act in

    conformity‖ with the Convention but to ―take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have 18the effect of creating or perpetuating racial discrimination wherever it exists.‖

    Consistent with these textual commitments, the United States has underscored in each of its periodic reports on U.S. CERD compliance that the United States’s federalism understanding

     16 The ―federalism understanding‖ provides:

    That the United States understands that this Convention shall be implemented by the Federal Government

    to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and

    local governments. To the extent that state and local governments exercise jurisdiction over such matters,

    the Federal Government shall, as necessary, take appropriate measures to ensure the fulfillment of the

    Convention. 17 Concluding Observations, ?4. 18 CERD, art.2(1)(a) & (c) (emphasis added).

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    ―is not a reservation‖: ―It does not condition or limit the international obligations of the United States. Nor can it serve as an excuse for any failure to comply with those obligations as a matter 19 To the contrary, the U.S. retains full competence and an of domestic or international law.‖

    affirmative legal duty to monitor state and local laws, policies, practices, and regulations to ensure that they are consistent with the treaty obligations assumed under federal law and applicable to the States and localities through the Supremacy Clause.

    A. The United States’ report inadequately reports on CERD implementation at the

    state and local level, as requested by the Committee

     Following its review of the U.S.’s Initial Report, the CERD Committee noted that the

    United States primarily focused on implementation of the Convention at the federal level. It recommended that ―the next periodic report contain comprehensive information on its implementation on the State and local levels and in all territories under United States 20jurisdiction.‖ In particular the Committee noted the absence of data regarding state prisons and jails.

    Despite this Committee’s request for ―comprehensive information on [the CERD’s]

    implementation on the state and local level and in all territories under United States 21jurisdiction,‖ the U.S. Fourth Periodic Report (which was coordinated by the PCC) does not include a comprehensive report on state and local implementation of the CERD. Instead, the U.S. report offers selective examples of implementation from a few states, on the reasoning that ―reporting at length on all 50 separate states and the territories would be extremely burdensome 22and so lengthy as to be unhelpful to the Committee.‖ This statement does not absolve the U.S.

    of its failure to provide a complete report and only reinforces the urgent need to develop an integrated reporting and implementation system.

     Although the U.S. has attempted to include more information from the state and local level, which is positive, it has tended to focus on formal procedures, structures, and case statistics of a narrow and individual nature rather than the impacts of policies or lack thereof on 23distinct racial groups. This is certainly the case of the four case studies presented in Annex 1, which describe the legal and technical procedures available for lodging a narrow set of individual non-discrimination claims before municipal authorities in four states (Illinois, New Mexico, Oregon, and South Carolina), but fail to discuss general statistical disparities between racial groups, their causes, and what states and localities are doing to redress those disparities. The

     19 Third periodic reports of States parties due in 1999 Addendum United States of America, CERD/C/351/Add.1 (hereinafter ―Initial U.S. Report‖), ? 167; 2007 Periodic Report, __. 20 Committee Conclusions, ?402. 21 Concluding Observations, ?23 22 U.S. Report, ?353. 23 The report provides three main types of information about state and local implementation: (1) select instances where the federal government has taken action against state and local authorities for discrimination (in hiring, education, prisons, elections, policing) [e.g., ??62, 70, 154, 157, 173-78, 207]; (2) federal programs designed to support state anti-discrimination initiatives including federal grant programs to strengthen protections against racial profiling and hate crimes as well as technical assistance to police forces and other training efforts [??133, 155-56, 158-59, 189], although there is no indication of how many states actually participate in the programs; and (3) a handful of random state initiatives to promote tolerance [?? 124, 145].

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    failure to provide comprehensive and uniform information about state programs undermines its usefulness.

    Likewise, the United States suggests that efforts to eliminate racial discrimination at the local level usually rely on state or local agencies for administrative enforcement—e.g., through a 24 It, however, only provides information state civil rights or human rights commission or office.

    about the case load of eleven state commissions without further information on their effectiveness or any information about commissions in the other thirty-nine states. At least three states, Alabama, Arkansas and Mississippi do not have a human rights or human relations 25commission, and none of these commissions at the state and local levels currently interprets its 26jurisdictional mandate as requiring it to actively monitor local implementation of the CERD.

    Just as alarmingly, the U.S. Department of Justice last revised its ―Guidelines for Human

    Relations Commissions,‖ which encompass state human rights commissions, in 2003—after the

    CERD Committee issued its country conclusions urging the U.S. to report on state and local implementation of the CERD. The revised Guidelines nonetheless continue to omit any mention at all of the CERD or the obligation to monitor compliance with any human rights treaty for that 27matter.

     28As a result, other than limited information about state hate legislation and statistics,

    there does not appear to be any systematic effort to compile relevant statistics concerning discrimination at the state and local level. For the most part, the report fails to go further than list a handful of voluntary state initiatives. While this may be a useful first step, there is no indication of whether other states have adopted similar programs or whether states’ failure to adopt such programs adversely affects racial minorities in their jurisdiction. Further, where such state initiatives are listed, there is no assessment of their effectiveness or impact.

    B. The United States currently lacks permanent institutional mechanisms to monitor

    domestic compliance with the CERD by state and local authorities

    As discussed above, the United States does not have any permanent institutional mechanisms to facilitate monitoring CERD compliance at the state and local levels, to promote awareness of its protections, or to train state and local authorities about it. Rather, as the U.S. report reveals, compliance is left largely to the unchecked discretion of state and local authorities, without significant federal oversight. While the United States lauds these state and local authorities, including those in state- and city-level ―human rights commissions,‖ for fulfilling

    U.S. obligations under the CERD, these authorities tend to operate exclusively by reference to municipal law, in the form of statutory and constitutional non-discrimination provisions, unmediated by the CERD and often substantially narrower and more restricted than those provided for in the Race Convention. Indeed, state and local human rights commissioners often lack even a basic knowledge of CERD provisions and are reticent to refer to them at all in their

     24 See, e.g., U.S. Periodic Report, ?3. 25 Kenneth L. Saunders and Hyo Eun (April) Bang, ―A Historical Perspective on U.S. Human Rights Commissions,‖ Executive Session Papers Human Rights Commissions and Criminal Justice, No. 3 (June 2007), p.11. 26 The single exception at the city-level is the Commission on Peace and Justice in Berkeley, California. 27 See Dpmt of Justice, ―Guidelines for Human Relations Commissions,‖ available at

    http://www.usdoj.gov/crs/pubs/gehrc.htm (last visited Sept. 15, 2007). 28 U.S. Periodic Report, ??181, 185, 192-97.

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