Transcript CERD COMPLIANCE - The Kirwan Institute for the Study of

Civil Rights and Human
Rights in the Obama Era
The Convention for the Elimination
of Racial Discrimination (CERD)
June 24, 2010
The U.S. Social Forum
Overview
I. What is the CERD?
II. CERD in Action – How CERD
Works.
III. Why is CERD Important to
social and racial justice
advocacy?
I. What is the CERD?
(I)nternational
(C)onvention on the
(E)limination of All Forms of
(R)acial
(D)Iscrimination
What is the CERD?
 Multilateral treaty negotiated through the
UN in early 1960s
 Adopted & opened for signature and
ratification by UN General Assembly
December, 1965
 Entered into force January, 1969
 US signed in1966, and ratified in 1994
What is
CERD?
•Seven main
articles in CERD
•US reserved to
Article 4 and 7 on
1st Amendment
Grounds
•Article 8-16
Establishes CERD
Committee and
Reporting Process
•US says treaty is
not ‘self-executing’
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
Discrimination Defined
(Art. 1)
 “The term ‘racial discrimination’ shall mean any
distinction , exclusion, restriction or preference
based on race… which has the purpose or effect of
nullifying or impairing…the enjoyment of human
rights…”
 CERD is unequivocal: Effects matter.
 Racial discrimination includes facially neutral
policies and practices that have an unintended
negative effect on a racial group.
 Intent to discriminate is not necessary.
Other Components of
CERD
Creates Affirmative Obligation requiring
Govts. to pro-actively identify and remedy
racial discrimination in law and policies
Requires “Special Measures (Art. 2, ¶ 2)
Requires data collection and evaluation
by race to measure discriminatory impact
Requires countries to report to the CERD
Committee on their progress
II. CERD in Action
How CERD affects the USA and
How NGOs use CERD
Periodic Reporting
Process
1) State Party files Periodic Report
2) CERD Committee accepts reports from
activists and NGOs (Shadow Reports)
3) CERD Committee questions state
representative
4) CERD Committee issues “Concluding
Observations”
Periodic Reporting Process:
Article 9
1) State parties submit reports on CERD
implementation one year after entering
2) State Parties thereafter submit reports
every two years and as requested
The United States has submitted an Initial
Report (2000) and a Periodic Report
(2007) as well as a follow up Report
(2009).
2007 US Periodic Report
 Submitted by the Bush Administration
 Outlined policies and practices that are in
compliance with the CERD.
 Did not address how the country falls
short and reiterated our reservations to
hate speech and hate group
membership.
NGOs: CERD Shadow
Reporting
 A shadow report is information submitted by
NGOs to the treaty monitoring bodies that
addresses omissions, deficiencies, or
inaccuracies in the official government reports.
 This is one way for NGOs to get the attention
of the United States.
 The USA is obligated to answer questions
based in part on the information in Shadow
Shadow Reports to the 2007
Periodic Report
 In 2008, Kirwan & over 200 other groups
submitted a shadow report to the UN,
detailing where the US has fallen behind
on commitment to CERD
 Kirwan was part of the Structural Racism
Report, first report in 500 page total
shadow report
Structural Racism Shadow
Report
 Kirwan and other groups attacked:
 The intent doctrine of the 14th Amendment
 US failure to review and correct policies that
perpetuate racialized disparities
 US failure to enhance government
coordination with states, using the Katrina
fallout as an example.
• The United States was questioned on its
Katrina Response.
CERD Committee Response:
Concerned About
 Residential Segregation
 Criminal Justice
 Police Brutality
 Felon Disenfranchisement
 Katrina Displacement
CERD committee requested
that the US report back on
 racial profiling at the federal and state levels
 life sentence without parole against persons under the
age of eighteen
 return of persons displaced by Hurricane Katrina
 Public awareness and education programs on the
Convention and its provisions.
US 2009 Report Back
 Bush Administration response shortly
before Obama took office.
 Reiterated the information in the 2007
Report and defended its record of civil
rights and protections as all in
accordance with US Law.
CERD letter Sept. 2009
 Reiterated the need to end racial
profiling, address racialized disparities,
and addressed the committee’s concern
over the slow progress of the United
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 and
CERD compliance
 In 2009, Obama Administration decided
not to go to the CERD Durban
conference.
 There was some movement by the
Justice Department to have CERD
meetings in early March 2010, but the
meetings have been postponed.
III. 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?
 Exposure and Shaming
 Framing Issue as Human Rights Issue
 Use shadow reporting to elevate your issues
 Using shadow reporting to implement cerd at
local level, with city and state govt.
 Legal Advocacy Given Limited Domestic
Remedies
 Higher Standards than Domestic Law
 Periodic Reporting/Accountability
Exposure
 Using Shadow Reports as an Organizing
Strategy
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Select an issue
Collect information, organize meetings
Collaborate with other organizations
Draft a shadow report
Testify at Congressional Hearings
Meet with/Submit questions to CERD
Rapporteur
Frame as “Human Rights”
Issue
 Sometimes issues feel like ‘old news’
even when important
 Framed as ‘human rights’ issue, CERD
allows you to create public record of legal
violation
 Draw media attention
Legal Advocacy
 Supreme Court often cites International
Law:
 Justice Ginsberg, concurrence in Grutter v.
Bollinger, citing CERD twice
 Justice Kennedy in Roper v. Simmons, citing
ICCPR, American Convention on Human
Rights, and Convention on the Rights of the
Child
 Cite in Briefs and as Amici
State and Local Action
 Pennsylvania state representatives held
hearings on CERD
 Massachusetts Human Rights Bill would
implement CERD, CEDAW and CRC
 Cook County resolution recognizing
CERD and CESCR right to housing
 California adopted CERD definition into
state statutory law
Next Periodic Reports
 7th through 9th due November 20th, 2011.
 Universal Periodic Review:
 New UN mechanism that reviews all
countries based on ratified treaties and UN
Charter/Declaration of HR
 December, 2010
Questions or Comments?
For Further Information, Visit Us Online:
www.KirwanInstitute.org
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