February 7, 2008

II. Violation of the Obligation to Review Governmental Policies and to Propagate the Principles of ICERD: Article 2.1

Convention Standards and Concerns

The International Convention on the Elimination of all Forms of Racial Discrimination ("ICERD") requires that states parties:

[T]ake effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.[6] 

The United States is also bound to "ensure that all public authorities and public institutions, national and local, shall act in conformity"[7] to eliminate racial discrimination and to "adopt immediate and effective measures … to propagat[e] the purposes and principles of … this Convention [ICERD]."[8]

Like our NGO colleagues, Human Rights Watch believes that the United States has failed to fulfill these obligations to review state and local policies and to promote understanding of ICERD. We would like to provide some specific examples, based on our own research, that illustrate this failure.

As the Committee is aware, the United States is a federal republic, which means that it recognizes and protects the independent powers of its constituent states along with those of the federal government. This federal structure of the United States is established by the US Constitution. Nevertheless, the internal workings of the United States are not of concern to the Committee, which holds a justified expectation that the international commitments of the United States will be upheld by all parts of its government. Unfortunately, with regard to obligations of the United States under multilateral human rights treaties (in contrast to multilateral trade, maritime, or military treaties), this legally justified expectation of the international community has been continually disappointed. The record of the United States with regard to ICERD is no exception.

In its Concluding Observations on the 2001 initial, second, and third periodic reports of the United States, the Committee:

[E]mphasize[d] that irrespective of the relationship between the federal authorities, on the one hand, and the States, which have extensive jurisdiction and legislative powers, on the other, with regard to its obligation under the Convention, the Federal Government has the responsibility to ensure its implementation on its entire territory.[9] 

In addition, the Committee instructed the United States to "take all appropriate measures to review existing legislation and federal, State and local policies to ensure effective protection against any form of racial discrimination and any unjustifiably disparate impact."[10] It further recommended that "the next periodic report contain comprehensive information on its implementation [at] the State and local levels and in all territories under United States jurisdiction."[11]

In addition to these clear international obligations, as a matter of domestic law, the federal government of the United States is required to conduct oversight over its constituent states' adherence to ICERD, a treaty that the US Senate ratified in 1994. Under Article VI of the US Constitution, ratified treaties become the "supreme law of the land" with a legal status equivalent to federal statutes. When it ratified the treaty, the US Senate stated its obligation to "take appropriate measures to ensure the fulfillment of this Convention."[12] The federal government is therefore obligated to assume responsibility for US compliance with ICERD, and to ensure that "all public authorities and public institutions, national and local … act in conformity" with the treaty's terms.[13] 

In fact, the United States has acknowledged that federalism is not an excuse for its failure to apply the treaty domestically. In the Addendum to its third periodic report, the US stated that federalism "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 of domestic or international law."[14]

Taken together, these international and domestic obligations of the United States impose two requirements on the federal government regarding its oversight of state policies relating to ICERD. First, the federal government has an obligation to inform the constituent states about the treaty and its provisions. Second, the federal government has an obligation to seek information from the states, so that it can review their policies and practices in light of the treaty, and to report to the Committee on policies or practices that have the purpose or effect of creating racial discrimination, and on measures taken to end such policies or practices. In fact, Human Rights Watch specifically wrote to Mary Beth West, the author of the 2007 US State Party Report to CERD, to suggest that such a review be undertaken (see Appendix 1 to view letter).[15] Unfortunately, the United States has failed to follow these simple steps.

Illustration: Constituent States of the United States are Unaware of ICERD

Failure to inform states about ICERD

First, the federal government apparently has not informed the states of the existence of ICERD and their responsibilities under it. Human Rights Watch has contacted the attorneys general of all 50 states, and not one has responded affirmatively that it was aware of the treaty's existence or of state responsibilities under it.[16] This reality casts doubt on the US government's claim in its 2007 fourth, fifth, and sixth periodic reports ("US State Party Report to CERD 2007") that "copies of the report and the Convention will also be widely distributed … to relevant state officials."[17] Our investigation in October and November 2007-seven months after the US government made this claim in April 2007-strongly suggests that it is false.

For example, the Florida Attorney General's office told a Human Rights Watch researcher, "I am not familiar with the Convention that you reference in your letter."[18] Similarly, the Attorney General of Maryland wrote to Human Rights Watch, "I am not aware of our State's responsibilities under ICERD."[19] The Attorney General of Kansas responded to Human Rights Watch's question "are you aware of ICERD and your state's responsibilities under it?" in the following manner:

If you could cite to the … law … imposing upon Kansas the 1969 [ICERD treaty] or creating a legal duty that applies to state officials we would perhaps be better able to respond to your question.[20]

Similarly, the Attorney General of the state of Washington wrote to Human Rights Watch on November 1, 2007, "I am not aware of the Attorney General's Office receiving any formal request or statement regarding requirements of CERD."[21]

Failure to review state policies

It is clear that the federal government has done little to raise awareness among its constituent states about ICERD. It has also failed to adequately review state policies and report to the Committee on those efforts. Instead, the federal government in its 2007 US State Party Report to CERD has mischaracterized the Committee's requests as requiring "[r]eporting at length on all 50 separate states and the territories," which the federal government concludes, "would be extremely burdensome and so lengthy as to be unhelpful to the Committee."[22]  Certainly, reporting at length on all 50 states would be burdensome, but this is not what the federal government is required to do. Instead, the federal government should submit to the Committee evidence of its review of state policies, particularly those that may raise concerns under the treaty.

Based on Human Rights Watch's investigations, it is clear that the federal government has failed to conduct such a policy review in preparation for its 2007 State Party report.  For example, the Florida Attorney General's office told a Human Rights Watch researcher:

I am not familiar with the Convention that you reference in your letter, nor do I have any record of a request for information coming to my office. I have also checked with our main office in Tallahassee, Florida, where sometimes these communications get sent and they have no record of a communication. Now, could it have fallen through the cracks? Well, sure. But as I said, we have no reference of contact from the federal government or the National Association of Attorney Generals on this.[23]

Similarly, the New Jersey Attorney General's office wrote to Human Rights Watch, "[T]o our knowledge, this Office has not been contacted by [the federal government], nor has any information been requested from this Office concerning the Convention."[24]

In yet another example, the Michigan Attorney General's office wrote to Human Rights Watch, "In reference to this office being contacted by either the National Association of Attorneys General or the federal government regarding a CERD report, my staff has reviewed our correspondence database and is unable to locate any correspondence related to this report. Additionally, this office contacted the Michigan Department of Civil Rights and the US Commission on Civil Rights but, again, we were unable to verify that such a request has ever been made or received by the state of Michigan."[25]

The alternative provided by the United States to the Committee-the Annex that covers some policies of four states-is an important and laudable first step. But it is far from sufficient. For example, the reviews of Illinois, New Mexico, Oregon, and South Carolina contained in the Annex fail to mention possible discrimination in the criminal justice systems of these states, which is an area of prime concern to the Committee and yet is not discussed in the Annex at all.[26]

Recommendations to the Committee

  • Urge the federal government to inform its constituent states about ICERD and its provisions and to present information in the next periodic report about the methods used to provide this information to the states.
  • Require the federal government to use a centralized permanent institutional mechanism to review the policies and practices of the constituent states, and to report to the Committee on policies or practices that have the purpose or effect of creating racial discrimination, and on measures taken to end such policies or practices at the state and local levels.

[6] ICERD, Article 2.1(c).

[7] ICERD, Article 2.1(a).

[8] ICERD, Article 7.

[9] Committee on the Elimination of Racial Discrimination, "Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America," UN Doc. A/56/18, 59th Session, 30 July – 17 August, 2001, para. 383.

[10]Committee on the Elimination of Racial Discrimination, "Concluding Observations: USA," para. 393.

[11] Committee on the Elimination of Racial Discrimination, "Concluding Observations: USA," para. 402.

[12] The United States stated in connection with its ratification of ICERD that the treaty is not "self-executing." Nevertheless, the laws of the US and its states as well as their implementation must be consistent with ICERD. This follows directly from Article VI, section 2 of the US Constitution, which states that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land." As a matter of international law, reservations to treaties may not contradict the object and purpose of the treaty at issue. Vienna Convention on the Law of Treaties, adopted May 22, 1969, 1155 U.N.T.S. 331, entered into force January 27, 1980, signed by the US on April 24, 1970, Article 19(3). Instructive in this regard are the comments of the UN Human Rights Committee, responsible for interpreting and monitoring compliance with the International Covenant on Civil and Political Rights, which has stated that reservations or interpretive declarations should not "seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be identical, or to be accepted only in so far as they are identical, with existing provisions of domestic law." UN Human Rights Committee, General Comment 24, Reservations to the ICCPR, UN Doc. CCPR/c/21/Rev. 1/Add. 6 (1994), para. 19.

[13] ICERD, Article 2.1(a).

[14] Government of the United States, Third Periodic Reports of States Parties Due in 1999, CERD/C/351/Add.1, Addendum, para. 167.

[15] Letter from Human Rights Watch to Mary Beth West, December 20, 2006. See Appendix 1.

[16] Letter from Human Rights Watch to the attorneys general for all 50 US states, October 19, 2007.

[17] Government of the United States, Periodic Report Concerning ICERD, 2007, para. 50.

[18] Human Rights Watch telephone interview with Allison Bethel, director of civil rights for the attorney general, State of Florida, October 24, 2007.

[19] Email to Human Rights Watch from John B. Howard, Jr., deputy attorney general, State of Maryland, October 22, 2007.

[20] Letter to Human Rights Watch from Theresa Marcel Bush, assistant attorney general, State of Kansas, October 25, 2007.

[21] Letter to Human Rights Watch from Traci Friedl, assistant attorney general, State of Washington, November 1, 2007.

[22] Government of the United States, Periodic Report Concerning ICERD, 2007, para. 353.

[23] Human Rights Watch telephone interview with Allison Bethel, October 24, 2007.

[24] Letter to Human Rights Watch from Abbe R. Gluck, senior advisor to the attorney general, State of New Jersey, November 6, 2007.

[25] Letter to Human Rights Watch from Mike Cox, attorney general, State of Michigan, December 10, 2007.

[26] The 2007 US State Party Report to the Committee discusses federal efforts to address racial discrimination in federal prisons, but does not discuss any similar efforts or failings at the state level. Similarly, the report provides no analysis of state policies and statistics that might show "differential handling of persons in the criminal justice system," and instead cites two studies from the early 1990s suggesting "that the disparities are related primarily to differential involvement in crime by the various groups (with some unexplained disparities particularly related to drug use and enforcement), rather than to differential handling of persons in the criminal justice system." Government of the United States, Periodic Report Concerning ICERD, 2007, para. 165.