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The United States has an obligation ensure that CERD is

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The United States has an obligation ensure that CERD is

    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 Conventioni.e., those protecting

    the right to be free from discrimination in the exercise of the full scope of civil, economic, cultural, political and social rightsthis 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