One UN committee member is shocked that “in spite of several decades of affirmative action in the United States to improve the mixing up of colors and races in schools … segregation [is] nowadays much worse than it was in the 1970s.”
WASHINGTON — The Obama administration last week sent a significant delegation to provide testimony to the United Nations on the United States’ progress in implementing a landmark international treaty barring racism and race-based discrimination.
For two days, close to 30 representatives from 10 government agencies appeared before a U.N. committee in Geneva and discussed measures the administration has put in place to push against unequal metrics, stubborn realities of ongoing segregation and outright structural racism. Yet official after official also admitted to the committee’s experts that much more needs to be done.
“While we have made visible progress that is reflected in the leadership of our society, we recognize that we have much left to do,” Keith Harper, the U.S. representative to the U.N. Human Rights Council and the delegation’s leader, stated on Aug. 13. “Issues covered by this Convention are of such fundamental and deep importance that we must continue to make progress.”
Harper’s analysis constituted the United States’ opening remarks to the Committee on the Elimination of Racial Discrimination. For only the second time, the country’s record on race relations and discriminatory practices, and in particular, the federal government’s actions in this regard, were last week publicly examined against the measuring stick of international law.
This was a formal review of the United States’ progress in implementing its obligations under a treaty known as the International Convention on the Elimination of All Forms of Racial Discrimination, commonly referred to as CERD or the race convention. Formally adopted at the global level in 1965 (and signed by the U.S. the following year), the convention was ratified by the U.S. in 1994, under the Clinton administration. It remains one of just three human rights-related treaties to be ratified by the U.S.
The federal government’s formal report to the committee is available here. In addition, dozens of thematic analyses by civil society groups, also formally lodged with the commission and covering education, housing, gun violence, health care, immigration and other issues, are available here.
A structural problem
On the one hand, it’s important to note that CERD came about in part due to the civil rights movement here in the U.S., as well as what was happening at the time in South Africa under Apartheid. On the other hand, many feel this initial leadership has since given way in important regards, with data suggesting broad areas in which the U.S. has made little progress or even backslided in recent decades.
Anofficial summary of last week’s discussions between the U.N. experts and civil society groups recorded one committee member’s shock “to realize than in spite of several decades of affirmative action in the United States to improve the mixing up of colors and races in schools … segregation was nowadays much worse than it was in the 1970s.”
Another expert noted that “some 39 million African Americans [are] particularly affected by structural racial discrimination in the United States … part of the broader heritage of slavery,” according to the summary.
Indeed, rights advocates here say that one of the most significant impacts of the race convention has been around the broader understanding of the structural issues of racism that persist in the U.S. — those ways in which institutionalized discrimination becomes considered normal.
“Since the convention was adopted, certainly in the United States, we’ve seen a shift in the views on structural forms of discrimination, and I think that’s been informed by the international rights dialogue,” Ejim Dike, the executive director of the U.S. Human Rights Network, or USHRN, a key organizer around the recent CERD review, told MintPress News.
“You see this understanding more in policy institutions as well as on the civil society side. There is a growing recognition that we need to start to address laws that, on their face, don’t seem to have anything to do with race, but which ultimately have a broad discriminatory impact. That’s an important shift before we start to see actual policy change.”
While the U.N. experts lauded the U.S. for the size of its delegation and the seriousness it clearly brought to last week’s review in Geneva, civil society observers warned that the country remains in contravention to its basic obligations under CERD, two decades after the treaty was ratified.
At one level, for instance, Washington has yet to provide a concrete plan for how it will implement the recommendations from the country’s first CERD review, in 2008. More broadly, this is indicative of a continuing lack of any comprehensive national action plan on how federal, state and local policies will be brought directly in line with the CERD obligations.
“For instance, we welcome the recent intervention by the Department of Justice and the investigation from the federal government into the recent shooting in Ferguson, Missouri. But there are likely many Fergusons taking place around the country,” Dike said.
“So this is clearly more of a systemic issue, and going in and investigating one situation is not going to solve the problem. So we need a national plan of action to fully implement the standards in the race convention.”
Beyond intent, outcome
Given longstanding political polarities and conservative skepticism of international treaties in Washington (a primary reason the U.S. didn’t ratify the race convention sooner was due to Republican concern that it would strengthen communist powers at the global level), when the U.S. finally did ratify CERD it did so with a number of formal reservations. The treaty obligations are not enforceable in domestic court, for instance, although when there is no conflict with domestic law, judges are encouraged to align their decisions with the convention’s details.
Beyond this, however, the diktats of a ratified treaty are supposed to have the same weight as federal law. Yet one of the most important points to come out of the Geneva review was an emphasis on the extent to which U.S. law and international law as embodied in the race convention continue to be at odds with one another at a very fundamental level.
During the review, U.S. officials repeatedly noted the strong attempts that have been made in recent decades to ensure that U.S. law and policy do not actively discriminate against minorities. Yet under CERD, this point is taken as a given; instead, the convention goes much farther, to specifically prohibit any law that has the effect of being discriminatory. Further, it mandates that states actively work to ameliorate such situations.
“What’s particularly strong about this treaty is that it looks at outcomes just as much as it looks at intent,” USHRN’s Dike said. “The way that international law looks at racism is if a disproportionate number of people in the criminal justice system, for instance, are poor or people of color, that indicates a race problem — irrelevant of intent.”
The U.S. definition of discrimination in civil rights law, she noted, generally still requires that policies are intended to discriminate in order to find disproportionate impact against any particular community. Affirmative action, then, which has received so much scrutiny from lawmakers and the legal system in the U.S. in recent years, would not only be encouraged under the international system — it would be required.
Gun violence is another policy case in point, and one that received great attention from the U.N. experts in Geneva last week. If U.S. gun policies, at the state or federal level, are found to have a disproportionately negative impact on minorities — as has repeatedly been shown — then the CERD obligations would dictate that the government is required to deal with this discrepancy.
Critics point in particular to such flashpoint statutes as the so-called “Stand Your Ground” laws on the books in certain states, which prioritize self-defense over retreat.
“The issue here is policies that aren’t discriminatory on their face but which maintain patterns of discrimination or create new ones,” Eric S. Tars, a senior attorney with the National Law Center on Homelessness & Poverty, told MintPress. “But currently, doing something about that type of problem isn’t deeply ingrained in the minds of the general populace or in lawmakers.”
Tars’ office focuses on how the U.S. structures its housing finance, and the fact that minority communities continue to be disproportionately affected by homelessness. While the federal government does offer housing subsidies that are used particularly by minorities, critics point out that those budgets are relatively small, especially compared to the tax benefits offered to mortgage-owners — who tend to be white and relatively wealthier.
Thus, while none of these policies are intended to hurt or discriminate against minorities — in some cases, the opposite is true — their cumulative effect is damaging for historically marginalized communities. Under international law and the race convention, such a situation would require action from the federal government.
Responsibility at all levels
It’s not just the federal government that is required to abide by CERD, though. U.S. officials in Geneva last week repeatedly noted that the United States’ federal system of government places significant responsibility for implementation at the feet of state and local governments.
In that case, many say the federal government needs to do a far better job of getting the word out to lower-level officials about the convention and its mandates.
“During the review, several CERD committee members spoke extensively on federal, state and local coordination in implementing the treaty,” Erin Smith, a project attorney at the Human Rights Institute, part of the Columbia Law School, told MintPress.
“[This included] asking the federal government to educate state and local officials about the treaty and their obligations thereunder, and encouraging the U.S. to provide funding to state and local governments to monitor and implement those obligations.”
To date, the federal government has no systematic mechanism by which it can reach out to governors, mayors and others to update and educate them on the results of treaty reviews like last week’s, said the National Law Center’s Tars.
“State and local jurisdictions have actual responsibilities under the convention, and it’s the federal government’s responsibility to transmit those recommendations to lower-level officials,” he noted.
“At a minimum, we’d like to see some sort of correspondence with local and state officials, as well as federal personnel meeting with their local equivalents to take an active role in human rights education. It needs to be made clear that these treaties are part of our federal responsibilities, and state and local governments have a role to play.”
Tars and others are now looking to President Obama to issue an executive order that would mandate such an interagency mechanism, among other issues, before his time in office ends.
Following last week’s review, the CERD committee is expected to release formal recommendations to the U.S. by the end of the month.