Civil Rights and Human Civil Rights and Human Rights in the Obama EraRights in the Obama Era

The Convention for the Elimination The Convention for the Elimination of Racial Discrimination (CERD)of Racial Discrimination (CERD)

June 24, 2010The U.S. Social Forum

OverviewOverview

I.I. What is the CERD?What is the CERD?

II.II. CERD in Action – How CERD CERD in Action – How CERD Works.Works.

III.III. Why is CERD Important to Why is CERD Important to social and racial justice social and racial justice advocacy? advocacy?

I. What is the CERD?I. What is the CERD?

(I)(I)nternationalnternational

(C)(C)onventiononvention on theon the

(E)(E)limination of All Forms oflimination of All Forms of

(R)(R)acial acial

(D)(D)IscriminationIscrimination

What is the CERD?What is the CERD?

Multilateral treaty negotiated through the Multilateral treaty negotiated through the UN in early 1960sUN in early 1960s

Adopted & opened for signature and Adopted & opened for signature and ratification by UN General Assembly ratification by UN General Assembly December, 1965December, 1965

Entered into force January, 1969Entered into force January, 1969 US signed in1966, and ratified in 1994US signed in1966, and ratified in 1994

What is What is CERD?CERD?

Article 1 Defines Racial Discrimination

Article 2 Prohibits Discrimination and Requires Affirmative Measures to Address Disc.

Article 3 Racial Segregation/Apartheid Condemned

Article 4* Hate Propaganda Prohibited

Article 5 Enumeration of Guaranteed Rights, including health care and housing

Article 6 Effective legal protection and Remedies Provided

Article 7* Promote Human Rights Education and Combat Prejudice

•Seven main articles Seven main articles in CERDin CERD•US reserved to US reserved to Article 4 and 7 on 1Article 4 and 7 on 1stst Amendment Amendment GroundsGrounds•Article 8-16 Article 8-16 Establishes CERD Establishes CERD Committee and Committee and Reporting ProcessReporting Process•US says treaty is US says treaty is not ‘self-executing’ not ‘self-executing’

Discrimination Defined Discrimination Defined (Art. 1)(Art. 1) ““The term ‘racial discrimination’ shall mean any The term ‘racial discrimination’ shall mean any

distinction , exclusion, restriction or preference distinction , exclusion, restriction or preference based on race… which has the based on race… which has the purposepurpose oror effect effect of of nullifying or impairing…the enjoyment of human nullifying or impairing…the enjoyment of human rights…”rights…”

CERD is unequivocal: CERD is unequivocal: Effects Effects mattermatter. . Racial discrimination includes facially neutral Racial discrimination includes facially neutral

policies and practices that have an unintended policies and practices that have an unintended negative effect on a racial group.negative effect on a racial group.

Intent to discriminate is not necessary. Intent to discriminate is not necessary.

Other Components of Other Components of CERDCERD

Creates Affirmative Obligation requiring Creates Affirmative Obligation requiring Govts. to pro-actively identify and remedy Govts. to pro-actively identify and remedy racial discrimination in law and policiesracial discrimination in law and policies

Requires “Special Measures (Art. 2, ¶ 2)Requires “Special Measures (Art. 2, ¶ 2)Requires data collection and evaluation Requires data collection and evaluation

by race to measure discriminatory impactby race to measure discriminatory impactRequires countries to report to the CERD Requires countries to report to the CERD

Committee on their progressCommittee on their progress

II. CERD in Action

How CERD affects the USA and How NGOs use CERD

Periodic Reporting Periodic Reporting ProcessProcess

1)1) State Party files Periodic ReportState Party files Periodic Report

2)2) CERD Committee accepts reports from CERD Committee accepts reports from activists and NGOs (Shadow Reports)activists and NGOs (Shadow Reports)

3)3) CERD Committee questions state CERD Committee questions state representative representative

4)4) CERD Committee issues “Concluding CERD Committee issues “Concluding Observations”Observations”

Periodic Reporting Process: Periodic Reporting Process: Article 9Article 9

1)1) State parties submit reports on CERD State parties submit reports on CERD implementation one year after enteringimplementation one year after entering

2)2) State Parties thereafter submit reports State Parties thereafter submit reports every two years and as requestedevery two years and as requested

The United States has submitted an Initial The United States has submitted an Initial Report (2000) and a Periodic Report (2007) Report (2000) and a Periodic Report (2007) as well as a follow up Report (2009).as well as a follow up Report (2009).

2007 US Periodic Report2007 US Periodic Report

Submitted by the Bush AdministrationSubmitted by the Bush Administration

Outlined policies and practices that are in Outlined policies and practices that are in compliance with the CERD.compliance with the CERD.

Did not address how the country falls short Did not address how the country falls short and reiterated our reservations to hate and reiterated our reservations to hate speech and hate group membership. speech and hate group membership.

NGOs: CERD Shadow NGOs: CERD Shadow ReportingReporting

A shadow report is information submitted by NGOs A shadow report is information submitted by NGOs to the treaty monitoring bodies that addresses to the treaty monitoring bodies that addresses omissions, deficiencies, or inaccuracies in the official omissions, deficiencies, or inaccuracies in the official government reports.government reports.

This is one way for NGOs to get the attention of the This is one way for NGOs to get the attention of the United States. United States.

The USA is obligated to answer questions based in The USA is obligated to answer questions based in part on the information in Shadow Reports. part on the information in Shadow Reports.

Shadow Reports to the 2007 Periodic Report

In 2008, Kirwan & over 200 other groups In 2008, Kirwan & over 200 other groups submitted a shadow report to the UN, submitted a shadow report to the UN, detailing where the US has fallen behind detailing where the US has fallen behind on commitment to CERDon commitment to CERD

Kirwan was part of the Structural Racism Kirwan was part of the Structural Racism Report, first report in 500 page total Report, first report in 500 page total shadow reportshadow report

Structural Racism Structural Racism Shadow ReportShadow Report

Kirwan and other groups attacked:Kirwan and other groups attacked: The intent doctrine of the 14The intent doctrine of the 14thth Amendment Amendment US failure to review and correct policies that US failure to review and correct policies that

perpetuate racialized disparitiesperpetuate racialized disparities US failure to enhance government US failure to enhance government

coordination with states, using the Katrina coordination with states, using the Katrina fallout as an example. fallout as an example.

• The United States was questioned on its The United States was questioned on its Katrina Response.Katrina Response.

CERD Committee Response:CERD Committee Response:Concerned AboutConcerned About

Residential Segregation Residential Segregation

Criminal JusticeCriminal Justice

Police BrutalityPolice Brutality

Felon DisenfranchisementFelon Disenfranchisement

Katrina DisplacementKatrina Displacement

CERD committee requested CERD committee requested that the US report back on that the US report back on

racial profiling at the federal and state levels racial profiling at the federal and state levels

life sentence without parole against persons under the life sentence without parole against persons under the age of eighteen age of eighteen

return of persons displaced by Hurricane Katrina return of persons displaced by Hurricane Katrina

Public awareness and education programs on the Public awareness and education programs on the Convention and its provisions.Convention and its provisions.

US 2009 Report BackUS 2009 Report Back

Bush Administration response shortly Bush Administration response shortly before Obama took office.before Obama took office.

Reiterated the information in the 2007 Reiterated the information in the 2007 Report and defended its record of civil Report and defended its record of civil rights and protections as all in rights and protections as all in accordance with US Law. accordance with US Law.

CERD letter Sept. 2009CERD letter Sept. 2009

Reiterated the need to end racial Reiterated the need to end racial profiling, address racialized disparities, profiling, address racialized disparities, and addressed the committee’s concern and addressed the committee’s concern over the slow progress of the United over the slow progress of the United States.States.

What’s the Use of CERD?

No “teeth” to CERD. Can’t sue under it, can’t enforce it?

Basically, CERD can be used as a way for NGOs to put the government and the world on notice of its human rights and civil rights abuses. While there was no movement in 2007, a more responsive administration might move to action.

Obama Administration Obama Administration and CERD complianceand CERD compliance

In 2009, Obama Administration decided In 2009, Obama Administration decided not to go to the CERD Durban not to go to the CERD Durban conference.conference.

There was some movement by the There was some movement by the Justice Department to have CERD Justice Department to have CERD meetings in early March 2010, but the meetings in early March 2010, but the meetings have been postponed. meetings have been postponed.

III. Why is CERD III. Why is CERD Important?Important?

Why is CERD Important?Why is CERD Important?US HAS Ratified US has signed, but NOT Ratified

International Covenant on Civil and Political Rights (ICCPR)

International Covenant on Economic, Social, and Cultural Rights (CESCR)

ICERD Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)

Convention against Torture (CAT) Convention on the Rights of the Child (CRC)

Convention on the Protection of the Rights of all Migrant Workers and Members of their Families

Convention on the Rights of Persons with Disabilities (CRPD)

American Convention on Human Rights

Why is CERD Important?Why is CERD Important?

Exposure and ShamingExposure and Shaming Framing Issue as Human Rights IssueFraming Issue as Human Rights Issue

Use shadow reporting to elevate your issuesUse shadow reporting to elevate your issues Using shadow reporting to implement cerd at local Using shadow reporting to implement cerd at local

level, with city and state govt.level, with city and state govt.

Legal Advocacy Given Limited Domestic Legal Advocacy Given Limited Domestic RemediesRemedies

Higher Standards than Domestic LawHigher Standards than Domestic Law Periodic Reporting/Accountability Periodic Reporting/Accountability

ExposureExposure

Using Shadow Reports as an Organizing Using Shadow Reports as an Organizing StrategyStrategy Select an issueSelect an issue Collect information, organize meetings Collect information, organize meetings Collaborate with other organizationsCollaborate with other organizations Draft a shadow reportDraft a shadow report Testify at Congressional HearingsTestify at Congressional Hearings Meet with/Submit questions to CERD Meet with/Submit questions to CERD

RapporteurRapporteur

Frame as “Human Frame as “Human Rights” IssueRights” Issue

Sometimes issues feel like ‘old news’ Sometimes issues feel like ‘old news’ even when importanteven when important

Framed as ‘human rights’ issue, CERD Framed as ‘human rights’ issue, CERD allows you to create public record of legal allows you to create public record of legal violationviolation

Draw media attention Draw media attention

Legal AdvocacyLegal Advocacy

Supreme Court often cites International Supreme Court often cites International Law:Law: Justice Ginsberg, concurrence in Justice Ginsberg, concurrence in Grutter v. Grutter v.

BollingerBollinger, citing CERD twice, citing CERD twice Justice Kennedy in Justice Kennedy in Roper v. Simmons, Roper v. Simmons, citing citing

ICCPR, American Convention on Human ICCPR, American Convention on Human Rights, and Convention on the Rights of the Rights, and Convention on the Rights of the Child Child

Cite in Briefs and as AmiciCite in Briefs and as Amici

State and Local ActionState and Local Action

Pennsylvania state representatives held Pennsylvania state representatives held hearings on CERDhearings on CERD

Massachusetts Human Rights Bill would Massachusetts Human Rights Bill would implement CERD, CEDAW and CRCimplement CERD, CEDAW and CRC

Cook County resolution recognizing Cook County resolution recognizing CERD and CESCR right to housingCERD and CESCR right to housing

California adopted CERD definition into California adopted CERD definition into state statutory lawstate statutory law

Next Periodic ReportsNext Periodic Reports

77thth through 9 through 9thth due November 20 due November 20thth, 2011., 2011. Universal Periodic Review: Universal Periodic Review:

New UN mechanism that reviews all New UN mechanism that reviews all countries based on ratified treaties and UN countries based on ratified treaties and UN Charter/Declaration of HRCharter/Declaration of HR

December, 2010December, 2010

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