NGO Shadow Reports
Under the U.N. Convention on the Elimination
of All Forms of Racial Discrimination
DRAFT COPY
September 2005
U.S. Racial Discrimination Program
GLOBAL RIGHTS is a human rights advocacy group that partners with local
activists to challenge injustice and amplify new voices within the global discourse.
With offices in countries around the world, we help local activists create just societies
through proven strategies for effecting change.

We seek justice for victims of human rights abuses.

We work to promote racial and gender equality and help people and communities
feel empowered to change their societies.

We work through field offices in Asia, Africa, Latin America, Europe, and in the
United States, partnering with local human rights advocates to strengthen their
effectiveness in combating abuses in their countries

We focus on developing the skills of local activists that are essential to addressing
human rights concerns and promoting justice such as: documenting and exposing
abuses, conducting community education and mobilization, advocating legal and
policy reform in countries and internationally, and using the courts to increase
access to justice for disadvantaged populations.

We help local activists to engage with the international community, including the
United Nations, to further their human rights objectives at home.
www.globalrights.org
In the spirit of the United Nations’ encouragement of collective efforts at the international level
(Resolution 49/184), this manual is placed in the public domain and put at the disposal of all
interested persons to consult it or use it. Reproduction is authorized provided that the text is
for educational ends not commercial use and on the condition that credit is given to the
publisher.
The opinions, findings, and conclusions or recommendations expressed in this publication are
those of Global Rights.
Global Rights © September 2005
TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................................................. 1
II. WHAT IS THE ICERD? ................................................................................................................................. 3
A. History and Key Features of the Treaty ..........................................................................................................................................................3
B. Reservations, Understandings, and Declarations ................................................................................................................................... 4
C. Particular Benefits of ICERD for U.S. Activists ...................................................................................................................................... 4
III. THE COMMITTEE AND THE REPORTING PROCESS ................................................................... 5
A.
B.
C.
D.
E.
The Committee ................................................................................................................................................................................................................ 5
General Recommendations ..................................................................................................................................................................................... 5
Requirements for Country Reports and Procedures ............................................................................................................................... 8
Objectives of State Party reports ........................................................................................................................................................................ 9
Prior U.S. Reports and Recommendations ................................................................................................................................................. 10
(1)
The U.S. Report....................................................................................................................................................................................... 10
(2)
The Committee’s Concluding Observations .......................................................................................................................... 10
IV. THE SHADOW REPORTING PROCESS ..............................................................................................12
A. First Steps ........................................................................................................................................................................................................................ 12
(1)
Identification of Issues ........................................................................................................................................................................ 12
(2)
Identification of Advocacy Goals ................................................................................................................................................ 12
(3)
Identification of Advocacy strategies .........................................................................................................................................13
B. Drafting the Shadow Report ................................................................................................................................................................................ 15
(1)
Describe the human rights situation .......................................................................................................................................... 15
(2)
Identify the key article(s) of the treaties .................................................................................................................................. 15
(3)
Identify current laws and the government’s implementation record ...................................................................... 16
(4)
Identify obstacles to achieving full implementation of the treaties ......................................................................... 16
(5)
Recommendations .................................................................................................................................................................................. 17
(6)
Submission of the report to the CERD...................................................................................................................................... 18
C. Engaging the Committee ......................................................................................................................................................................................... 19
(1)
Lobbying Strategy.................................................................................................................................................................................. 19
(2)
Beyond the Committee: Accountability and Follow Up................................................................................................20
V. OTHER CONSIDERATIONS IN SHADOW REPORTING............................................................. 22
VI. CONCLUSION.............................................................................................................................................. 24
VII. USEFUL INFORMATION SOURCES .................................................................................................. 25
APPENDIX 1: NGO SHADOW REPORT: A SAMPLE ............................................................................. 26
APPENDIX 2: U.S. RESERVATIONS, UNDERSTANDINGS, DECLARATIONS........................... 41
APPENDIX 3: SAMPLE PRESS RELEASE ................................................................................................... 47
Draft version: NGO Shadow Reports under the
U.N. Convention on the Elimination of All Forms of Racial Discrimination
I.
INTRODUCTION
The purpose of this guide is to assist U.S.-based nongovernmental organizations (NGOs) in the
shadow reporting process under one of the three main human rights treaties ratified by the
United States: the International Convention for the Elimination of All Forms of Racial
Discrimination (ICERD).1 The shadow reporting process plays a critical role in monitoring the
implementation of human rights treaties and ensuring the full protection of all peoples’ rights
under those treaties. In particular, shadow reports provide the treaty monitoring bodies with
accurate and appropriate information documenting a government’s human rights record from a
civil society perspective.
Human rights treaties such as the ICERD require those countries that ratify the treaties (State
Parties) to submit regular reports to the bodies that monitor implementation of the treaty
obligations. These reports are intended to detail the steps that State Parties have taken, and
plan to take, to implement and safeguard the rights contained in the treaties. Not surprisingly,
State Parties tend not to be entirely forthcoming about possible or alleged violations of the
treaty obligations. The practice of shadow reporting has evolved in response to the need for
alternative sources of information concerning state compliance,
The term “shadow report” refers to reports created by NGOs that parallel, analyze, and
supplement the report created by the government. In addition to assessing the government’s
record in protecting human rights, an underlying purpose of preparing a shadow report is to
strengthen the advocacy capacity of NGOs. Shadow reports provide a concrete tool for:
(1) assessing and describing a government’s track record in fulfilling its obligations to promote
and protect human rights;
(2) monitoring governmental actions to honor commitments made through treaty ratification as
well as at international conferences on human rights;
(3) building political pressure through publicity and education; and
(4) providing examples of “Best Practices” for NGOs to share with the domestic and
international community.
The treaty reporting process functions only as well as the information which it produces, and
the role that NGOs play in educating the expert members of the treaty bodies is critical. NGOs
working at the national and local levels are urged to consider this exchange of information as an
integral part of their mandates.
Of course, drafting a shadow report is not a simple task. It requires thoughtful analysis,
strategic planning, collaboration with allies, and the actual drafting of the report, all of which
can be extremely time-consuming. However, the production of shadow reports are one
important step in the broader movement to hold the U.S. government accountable under
international human rights law. Only by monitoring the government’s compliance with its
The other two human rights treaties ratified by the U.S. are the International Covenant on Civil and Political
Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT).
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treaty obligations, and by publishing an assessment of its successes and failures, can U.S.
organizations hope to pressure the government to be a more effective guarantor of the human
rights of all people in the U.S.
In 2004, the U.S. State Department declared its intentions to submit all of its compliance reports
to the international human rights treaty bodies in 2005. The report to the Committee against
Torture was formally submitted in May 2005, but as of September 25 (2005), neither the ICCPR
report nor the ICERD report has been filed.
Global Rights is issuing this guide as a resource for U.S. organizations interested in
participating in the shadow reporting process for the ICERD, and we can be contacted for
further information at:
ATTN: U.S. Racial Discrimination Program
Global Rights
th
1200 18 Street, NW, Suite 602,
Washington DC 20036
Tel. 202 822 4600, Fax. 202 822 4606
Email: info@globalrights.org
www.globalrights.org
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II. WHAT IS THE ICERD?
A.
History and Key Features of the Treaty
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD
or “the Convention”) was adopted by the unanimous consent of the General Assembly of the
United Nations in December 1965 and went into force in 1969. Like the other treaties of the
United Nations, ICERD is rooted in the Universal Declaration on Human Rights which was
adopted by the U.N. in 1948 and covers the range of fundamental civil, political, economic, social
and cultural human rights. ICERD provides a framework in which to assess the extent to which
a government is upholding the right to equality and the right to freedom from racial
discrimination.
The U.S. signed the Convention in 1966, but it was not transmitted to the Senate for its
Constitutionally-required “advice and consent” until 1978, and the U.S. only ratified the ICERD
in 1994. This delay of almost thirty years in ratification is attributable to many sources, ranging
from general resistance to international scrutiny of U.S. practices, to the politics of the Cold
War, to lingering racism in the U.S. resulting in resistance to the goals of ICERD itself. These
factors combined in a manner such that the civil rights movement in the U.S. was forced to
divorce itself from the international human rights movement, for fear of being labeled
Communist for many years. Only with the fall of Communism in the late 1980s did civil rights
groups begin returning to the opportunities of the international system, leading to the 1994
ratification. Still, this legacy lingers today, as many groups are unaware of the possibilities
ICERD holds.
ICERD obligates states to review policies and legislation for racial discrimination in both purpose
and effect (regardless of intent). This aspect of the Convention is particularly useful in addressing the
issue of the racially disparate impacts of policies and legislation. The definition of racial
discrimination in ICERD is as follows:
any distinction, exclusion, restriction or preference based on race, color, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life.
(Article 1.1).
Significantly, ICERD allows for and, in some cases, requires positive measures such as
affirmative action in order to redress racial inequalities (Article 1.4).
The treaty monitoring body established under ICERD is called the Committee for the
Elimination of Racial Discrimination (CERD). Since 1972, with authority under Article 8, CERD
has issued thirty-one General Recommendations as a means of clarifying the objectives and
scope of ICERD.2 The full list of CERD’s General Recommendations can be found at:
http://www.ohchr.org/english/bodies/cerd/comments.htm
For example, General Recommendation 25 (March 2000) addresses the importance of taking into account gender
factors or issues which may be inter-linked with racial discrimination.
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B.
Reservations, Understandings, and Declarations
When ratifying and sometimes signing human rights treaties, governments can make
Reservations, Understandings and Declarations (RUDs). In making a Reservation, a
government makes a statement in which it redefines its obligations under specific treaty
provisions. A reservation cannot be accepted if it is expressly prohibited by the treaty or is
incompatible with the object or purpose of the treaty. For example, while the ICERD contains
prohibitions on hate speech, the U.S. has made a reservation to the treaty that states the
protections of the ICERD go only as far as the Constitution’s protections of free speech will
allow. With an Understanding, a government provides its interpretation of an ambiguous
provision within a treaty, so saying that it accepts the treaty only with that understanding. For
example, the U.S. made an understanding to the ICERD, stating that while the federal
government has ultimate responsibility under the treaty, many of its mandates would have to be
implemented by state and local governments. With a Declaration, a government defines its
intent as to how it will implement the treaty. The U.S. Declarations to all the human rights
treaties to which it is party, for example, state that the treaties are non self-executing which
means that they are not accepted as part of U.S. domestic law and individuals are not allowed to
take cases to U.S. courts under the treaties. Unlike a Reservation, a Declaration should not alter
a government’s obligations under the treaty.
The U.S. government’s RUDs to the ICERD, as well as to the other human rights treaties ratified
by the U.S., are attached to these guidelines in Appendix 2.
C.
Particular Benefits of ICERD for U.S. Activists
There are several advantages offered by the ICERD to U.S. activists. First, the Convention’s
definition of racial discrimination, which includes both intentional discrimination and disparate
impact, is broader than that found in most domestic law. Under the ICERD, those laws that
have a racially discriminatory impact (such as the disparate sentencing guidelines for those
convicted of cocaine possession vs. those convicted of crack cocaine possession), even if not
intended, are illegal.
Second, the Convention specifically allows for affirmative action, and in fact requires it under
some circumstances. Contrary to some U.S. policies, the ICERD requires that “States Parties
shall, when the circumstances so warrant, take… special and concrete measures to ensure the
adequate development and protection of certain racial groups or individuals… for the purpose of
guaranteeing them the full and equal enjoyment of human rights… .”
Third, by its own wording and as reaffirmed through the U.S.’s RUDs, ICERD’s reach extends to
federal, state, and local policies. Thus, the local school district, the district attorney, the state
legislature, and Department of Homeland Security are all equally responsible for upholding the
obligations of the ICERD.
Finally, as will become clear throughout this manual, ICERD’s review of the U.S. government’s
implementation record enable activists to shine an international spotlight on issues that the
government would rather sweep under the rug. Through effective international advocacy and
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domestic media outreach, the potential for a shadow report to galvanize public interest around
an issue is high.
III. THE COMMITTEE AND THE REPORTING PROCESS
Once a government ratifies a human rights treaty, it becomes a State Party to the treaty. One of
its obligations is to submit periodic reports on treaty compliance and to send representatives to
answer questions during the treaty body’s review of its report.
A.
The Committee
The treaty bodies are comprised of independent experts who are first nominated by States
Parties from a list of persons of high moral standing and competence from all regions of the
world. The experts are then elected to four-year terms by secret ballot of the States Parties. As
noted above, the treaty body for the ICERD is known as the Committee on the Elimination of
Racial Discrimination, or CERD. CERD is comprised of eighteen experts who serve voluntarily
in their personal capacities (they are not compensated, they are not full-time, and they are not
the political representatives of the nations that nominated them).3 CERD is currently chaired
by an Argentinean, Mario Jorge Yutzis. The U.S. national on the Committee is Ralph F. Boyd,
Jr., the executive vice-president and general counsel of Freddie Mac and former Assistant
Attorney General for Civil Rights under President George W. Bush. The full list of the current
expert members of CERD can be found at:
http://www.ohchr.org/english/bodies/cerd/members.htm.
B.
General Recommendations
In addition to reviewing country reports, the treaty bodies also examine issues thematically
through what are known as General Comments or General Recommendations. 3 CERD’s
General Recommendations are constantly elaborating on the content of the rights protected by
the treaty based upon, but going beyond, the language present in the treaty itself. In these
Recommendations, CERD lays forth its authoritative interpretation of states’ obligations under
the treaty. CERD has issued thirty-one General Recommendations. These range from broad
outlines for state policy to specific recommendations for action. The elaborations in the General
Recommendations can provide useful grounding for holding the government accountable to
specific obligations. Below are a few non-exhaustive samples from General Recommendations
with particular import for U.S. activists. All the General Recommendations can be found, in
searchable format, at http://www.unhchr.ch/tbs/doc.nsf.
Global Rights’ Executive Director, Gay McDougall, previously served as a member of CERD (1998 – 2002).
Experts serve four-year terms. CERD, articles 8(1), 8(2), 8(5)(a).
3 CERD refers to these official statements as "General Recommendations" whereas several of the other treaty bodies
refer to them as "General Comments".
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General
Subject
Recommendation
XV
Organized
violence based
on
ethnic
origin
XIX
XXII
XXIII
References of Importance to U.S. Activists
CERD notes that “the prohibition of the dissemination of
all ideas based upon racial superiority or hatred is
compatible with the right to freedom of opinion and
expression.” This is contrary to the constitutional view in
the U.S., embodied in its reservation, that preserves free
speech above its obligations to stop the promotion of
racial hatred.
Racial
Remarks on the fact that the prohibition on segregation
segregation
and apartheid includes the requirement to eradicate the
and apartheid consequences of earlier apartheid situations, such as
existed during slavery in the U.S. Moreover, the
Recommendation also notes that segregation can occur
even without direct government direction, as in
residential segregation patterns, and that States are
obligated to monitor and remedy this effective segregation
as well.
Rights
of May be of particular relevance to those in areas struck by
refugees and Hurricane Katrina. This recommendation emphasizes
displaced
that all such refugees and displaced persons have the right
persons
freely to return to their homes of origin under conditions
of safety; All such refugees and displaced persons have,
after their return to their homes of origin, the right to have
restored to them property of which they were deprived in
the course of the conflict and to be compensated
appropriately for any such property that cannot be
restored to them. Any commitments or statements
relating to such property made under duress are null and
void; and All such refugees and displaced persons have,
after their return to their homes of origin, the right to
participate fully and equally in public affairs at all levels
and to have equal access to public services and to receive
rehabilitation assistance.
Rights
of The Committee affirms Indigenous Peoples fall under the
indigenous
mandate of ICERD. The Recommendation requires that
peoples
States, among other things, Provide indigenous peoples
with conditions allowing for a sustainable economic and
social development compatible with their cultural
characteristics; Ensure that members of indigenous
peoples have equal rights in respect of effective
participation in public life and that no decisions directly
relating to their rights and interests are taken without
their informed consent; and in particular to recognize and
protect the rights of indigenous peoples to own, develop,
control and use their communal lands, territories and
resources and, where they have been deprived of their
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lands and territories traditionally owned or otherwise
inhabited or used without their free and informed
consent, to take steps to return those lands and territories.
Gender
CERD notes that States are under special obligation to
related
address these problems, both in practice and in their
dimensions of reporting to the Committee. NGOs should take heed of
racial
this Recommendation in their reporting on the multiple,
discrimination overlapping discriminations faced by women of color in
the U.S.
Rights of non- Especially important in the post-9/11 context, CERD
citizens
demands among other things “that any measures taken in
the fight against terrorism do not discriminate, in purpose
or effect, on the grounds of race, colour, descent, or
national or ethnic origin and that non-citizens are not
subjected to racial or ethnic profiling or stereotyping”; and
moreover that states take “resolute action to counter any
tendency to target, stigmatize, stereotype or profile” by
actors including politicians and the media.
XXV
XXX
The Committee also requests states to “Combat illtreatment of and discrimination against non-citizens by
police and other law enforcement agencies and civil
servants by strictly applying relevant legislation and
regulations providing for sanctions and by ensuring that
all officials dealing with non-citizens receive special
training, including training in human rights.” In addition,
in contrast to the recent Supreme Court decision in
Hoffman Plastics, the Committee recommends States
“Recognize that, while States parties may refuse to offer
jobs to non-citizens without a work permit, all individuals
are entitled to the enjoyment of labour and employment
rights, including the freedom of assembly and association,
once an employment relationship has been initiated until
it is terminated.”
Race and the Urges the collection of disaggregated data to determine
Criminal
whether or not certain racial groups are targeted by the
Justice System criminal justice system. Also calls for the elimination of
laws that have a racially discriminatory impact and for
human rights training for law enforcement officials and
judicial authorities.
Finally, there are several
recommendations regarding arrest, pre-trial detention,
prosecution, and execution of sentences.
XXXI
C.
Requirements for Country Reports and Procedures
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State Parties are required under each of the treaties to send a formal, written report on the steps
the national government has taken, and proposes to take, to comply with the obligations in the
treaty. Under ICERD, for example, State Parties are obligated to submit such a report within
one year after ratification of the Convention, and then a comprehensive report every four years,
with brief interim reports every two years. Additionally, CERD may request supplemental
reports. If a State Party fails to submit a report within a period of five years, CERD has the
discretion to review the State Party, in the absence of a State Party report and without the
presence of government representatives.
The U.S. ratified ICERD in 1994 and submitted its first report to CERD in September 2000,
which comprised its overdue first, second and third periodic reports. Its most recent report to
the CERD was due November 20, 2003, which the government has to date failed to submit.
In the U.S., the treaty reporting process is coordinated through the Office of the Legal
Adviser at the State Department.
Contact: Robert K. Harris
Assistant Legal Adviser for Human Rights and Refugees
2201 C St, NW Room 3422
Washington, DC 20520-6419
202-647-4065
harrisrk2@state.gov
Once a State Party has submitted its report, the report will be translated into all of the official
U.N. languages and put on the agenda of the following treaty body meeting for scheduling a
review. Normally, reports are reviewed as soon as possible after they are received, often within a
year of submission. CERD meets twice a year, in February-March and August, for three-week
sessions at the United Nations Office in Geneva.
Each country is assigned a Country Rapporteur on the treaty body, who oversees that particular
country’s report through the review process. The Country Rapporteur should be the person to
contact with substantive information regarding the U.S. government’s compliance with the
treaty. For questions regarding the scheduling of the review and any NGO activity around the
report, such as the deadline for submitting shadow reports or the date for the NGO briefing
with treaty members, the person to contact is the staff person for the Committee.
At the United Nations, the secretariat for the Committee on the Elimination of Racial
Discirmination is:
Nathalie Prouvez
Email: nprouvez@ohchr.org
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Once the government’s report has been received, the Committee will usually prepare a list of
questions based on the report for the government to answer at its hearing. These questions are
generally presented at the Committee session prior to the session where the government will
have its hearing, to allow the government time to research and formulate its response. The
preparation of these questions provides another opportunity for NGO input, as groups can give
background information to the Committee and draft sample questions focusing on their issues
of particular concern. Often, the Committee will host both formal and informal meetings with
NGOs at the session before the review to facilitate this discussion.
During the formal review of the government report, the State Party is required to send
representatives to the meetings where the Committee asks further questions, receives the
government’s response, and makes comments on the sufficiency of the steps the government has
taken to implement the treaties. The Committee will also make recommendations regarding the
areas that the government should focus on and how to make improvements. The review usually
takes place over a two-day period, with the State Party presenting its report and fielding initial
questions and commentary on the afternoon of the first day, and then answering more questions
and hearing concluding observations from the Committee on the second morning. A summary
of this “constructive dialogue’’ between the treaty body and the State Party is published by the
U.N. This summary, including the specific concerns and recommendations, is generally known
as the “Concluding Observations” and should be made available to NGOs by the State Party.
Another source for obtaining the Concluding Observations is the U.N. High Commission on
Human Rights document search website (http://www.unhchr.ch/tbs/doc.nsf).
D.
Objectives of State Party reports
The requirement that all governments submit regular reports to the treaty bodies is premised on
two assumptions. First, every government — no matter how well intentioned — is an actual or
potential violator of human rights. As a result, regular international accountability is in the best
interests of the State itself, of its citizens, its residents and of the international community.4
Second, several States have implemented successful programs, often referred to as “best
practices”, that should be shared with the global community. Among the objectives of reporting
are:

Achieving a comprehensive review of local and national legislation, administrative rules,
procedures, and practices;

Ensuring that State Parties regularly monitor the actual situation with respect to each
provision of the Convention, so that they are aware of the extent to which all citizens
enjoy all rights guaranteed by the treaties;

Highlighting the best practices in various jurisdictions, so that others may learn from
and implement similar programs;
Philip Alston, “The Purposes of Reporting,” Manual on Human Rights Reporting. U.N. Centre for Human Rights and
U.N. Institute for Training and Research, HR/PUB/91/1, p. 13.
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
Providing State Parties with the basis on which to further develop clearly stated and
targeted policies, which incorporate priorities consistent with the provisions of the
Conventions;

Permitting local agencies and the public to scrutinize national government policies and
encouraging the involvement of various sectors of society in the formulation and review
of these policies;

Providing a benchmark against which State Parties and the treaty bodies can evaluate
the extent to which progress has been made towards the realization of the obligations
established under the treaties;

Enabling State Parties themselves to develop a better understanding of the problems and
shortcomings encountered in the progressive realization of the treaties’ aims; and

Enabling the Committees and the State Parties as a whole to exchange information,
develop a better understanding of the common problems faced by States, and a fuller
appreciation of the types of measures which might be taken to promote effective
realization of the treaties’ obligations. This enables the Committees to identify the most
appropriate means by which the international community might assist State Parties.
E.
Prior U.S. Reports and Recommendations
The U.S. report submitted in 2000 was largely limited to outlining the government As noted
earlier, the United States has only submitted one previous report to the CERD in November
2000. The Committee formally reviewed the U.S. report in August 2001.
(1) The U.S. Report
The U.S. report submitted in 2000 was largely limited to outlining the government’s response to
racial discrimination at the federal level, with the understanding that future reports would
address state and local practices more in depth. To its credit, the report acknowledges a long
history of discrimination, both de jure and de facto, against a broad range of minorities in the U.S.,
and contains a comprehensive list of the federal laws and agencies designed to combat it.
However, to some extent, the report merely lists these laws and agencies, but does not probe
deeper in to the question of how well they are accomplishing their goals. The report rests on the
laurels of existing laws, essentially saying the government’s obligation to combat racial
discrimination has been met despite the fact that de facto discrimination continues to exist.
Moreover, many of the protections the report outlines have in fact been rolled back over the
years since the issuance of the report. The report can be found at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument.
(2) The Committee’s Concluding Observations
CERD’s Concluding Observations welcomed the frank discussion of discrimination in the U.S.’s
report and several of the laws and initiatives designed to combat discrimination. However,
CERD had numerous concerns regarding implementation of the treaty. These concerns include:
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
the absence of specific legislation implementing the provisions of the Convention in
domestic laws;

the RUDs entered at the time of ratification of the Convention, especially regarding the
prohibition of dissemination of all ideas based upon racial superiority or hatred as
compatible with the right to freedom of opinion and expression;

the view that much private conduct is outside the government’s control;

the lack of government review of practices and legislation that may not be discriminatory
in purpose, but are in their effect;

the incidents of police violence and brutality which particularly affects minority groups
and foreigners;

the disproportional rates of incarceration and capital punishment of minorities, with a
special request that the U.S. ensure that the high incarceration rate is not a result of the
economically, socially and educationally disadvantaged position of these groups;

felony disenfranchisement as an effective tool for racial disenfranchisement;

the equal enjoyment of economic, social and cultural rights, including persistent
disparities in the enjoyment of, in particular, the right to adequate housing, equal
opportunities for education and employment and access to public and private health
care, with recommendations for affirmative action to remedy this discrimination;

the fact that treaties signed by the Government and Indian tribes can be abrogated
unilaterally by Congress and that the land they possess or use can be taken without
compensation by a decision of the Government;

the absence of data regarding racial discrimination in federal and state prisons and jails,
with special invitation to provide, in its next report, information and statistics on
complaints and subsequent action taken in this field;

a further recommendation that the next report contain socio-economic data
disaggregated by race, ethnic origin and gender on, in particular: i) the indigenous and
Arab-American population, and ii) the populations of the States of Alaska and Hawaii.
The full text of the CERD’s concluding observations on the U.S. report filed in 2000 can be
found at:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.56.18,paras.380-407.En?Opendocument.
NGOs should review the last U.S. report and the Concluding Observations from the CERD in
order to see what promises the government may have made and what specific concerns the
Committee raised. NGOs should also review the Concluding Observations of other U.N.
Committees which have reviewed the U.S. government (CAT and HRC), regardless of which
Committee it is reporting to, incorporating relevant comments from other Committees into its
shadow report. Links to each of the Concluding Observations by the various Committees can be
found in the resources section below. NGOs may also find it helpful to look at other country
reviews in order to get a sense of how the Committees analyze issues and the types of
recommendations they generally make to governments.
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IV. THE SHADOW REPORTING PROCESS
A.
First Steps
Although the treaties themselves make no explicit provision for NGO input, treaty committees
need independent information from which to formulate their questions and identify the areas
where State Parties are not fully complying with their obligations. Despite the lack of a specific
provision for NGO reports, the treaty bodies are not only accessible to NGOs and eager to
receive their information, but also encourage participation by NGOs in the preparation of the
official national government reports. The reports submitted by NGOs are given the name
“shadow reports.” The treaty bodies welcome NGO participation as an opportunity for
exchange between government and civil society. The process also helps in identifying and
addressing areas of concern and obstacles to implementation of the treaties.
There are two main opportunities for NGO intervention in the review process: at the session
where the governments receive questions from the Committee on its report, and at the session
where the Committee conducts its full review of the State party. At each point, NGOs can make
both oral and written submissions: in the form of suggested questions with short background
for the session where the questions are presented, and then the full shadow report before the
session with the full government hearing. The below described drafting process focuses on the
drafting of the shadow report itself, however, many of the points are equally applicable to
drafting the shorter list of questions as well.
(1) Identification of Issues
One of the initial steps in preparing a report is to decide what are the key issues that NGOs
would like to draw to the treaty body’s attention. The provisions of ICERD are applicable to a
myriad of issues including: hate crimes, criminal justice, worker rights, affirmative action, health
care policy, voter rights, hate speeches, housing discrimination, employment discrimination, and
environmental justice. In particular, NGOs should remember that ICERD addresses the need for
governments to regularly review policy for both purpose and effect; and to implement programs of
affirmative action where necessary to guarantee human rights and fundamental freedoms.
There is no right or wrong approach to writing a shadow report. The decision as to what type of
shadow report should be submitted is an important strategic point for NGOs to consider.
While many domestic issues are ripe for review as international human rights abuses, not
necessarily all may be, and it may help your cause to be selective in your presentation of issues.
It is important for NGOs to keep in mind that the Committee has limited time and ability to
read the information it receives. It is suggested that reports do not exceed 10 – 15 pages in
length, although appendices may be used if copies of laws or additional documentation are
useful to support the work. Particularly if NGOs choose to write a longer report, it is
recommended to have a brief Executive Summary (perhaps two pages) which highlights the key
issues in the report and summarizes the recommendations.6 Of course, the available time and
6 Given that shadow reports invariably serve multiple purposes, suggested restrictions
on page lengths should not
impede the preparation of a report. In addition to an Executive Summary, providing clear headings and a table of
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resources available to an NGO will play a deciding role in determining the length and focus of a
report.
(2) Identification of Advocacy Goals
The goals that an organization has should clearly shape its advocacy around the reporting
process. The shadow report may be used to:

Highlight best practices;

Lobby for domestic legislation or policy reform at state and federal levels;

Educate domestic media and the public;

Contribute to political platforms;

Promote dialogue with political candidates or national government representatives; and

Clarify local agencies’ and NGOs’ priorities for rights enforcement and social change in
general.
Implementation of human rights treaties is the responsibility of the U.S. federal government.
The U.S. government has issued “Understandings” to ICERD, ICCPR, and CAT stating that it
will implement the provisions of the treaties in all areas where it has jurisdiction, and that state
and local governments will implement the treaties where the matters involved are within their
jurisdiction. It is important to realize that even where some powers are devolved to the states,
NGOs can still hold the federal government accountable for the actions of states which may be
violating the treaties.
Because of its Understanding under the ICERD, the U.S. Government focused its first report to
the CERD on federal laws and policies and did not provide detailed information on the laws,
policies and practices of different U.S. states. It would be very useful for the Committee to have
documentation regarding compliance of different states with the treaties and what steps the
federal government should take to better ensure that states are in compliance. It is also
appropriate for NGOs to make recommendations regarding specific state action which should
be taken towards implementing the treaties.
Given the federal/state structure of U.S. governance, examples of options for shadow reports on
the U.S. include the following:

A report which looks at a range of issues or focuses on one issue (e.g. education),
concentrating on federal law and policy;
contents which makes it easy for CERD experts to locate information regarding what may be a particular area of
interest to them, are good ways to make a report more useful to CERD.
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
A single-issue report which aims to address an issue at both federal and state level,
looking at a number of states around the country as well as the overall federal legislative
and policy picture;

A report which looks at one issue or a range of issues as experienced in different states
(perhaps three or four);

A report which looks at one issue or a range of issues focusing on one state.
(3) Identification of advocacy strategies
In addition to considering the issues to be dealt with in the shadow reports themselves, groups
should consciously, and early on, determine the best approach to getting the most mileage out of
the reporting process. Various advocacy strategies are suggested throughout this document, but
key strategic possibilities include:

linking sub-national, national and international advocacy;

generating media attention;

putting international pressure on domestic authorities;

doing public relations and educational outreach; and

making targeted approaches to key decision makers.
States Parties have come to expect questions from the treaty bodies on whether social justice
groups and NGOs generally have been consulted or involved in the preparation of the report and
whether, and in what ways, the report reflects the input of these groups. NGOs should assess
for themselves the potential benefits, limitations or pitfalls to direct cooperation with their
national government in the preparation of official reports. For example, NGOs should consider
to what extent they have the time – and whether it is worthwhile – to provide detailed
information to the government, and consider the extent to which the most useful contributions
NGOs can make to a government report are brief suggestions on what issues the government
should address. It should be kept in mind that governments are not eager to present a report to
the treaty bodies which will be an admission of numerous human rights violations. Therefore,
while NGOs might take much time to submit information to a government, and in turn the
government will tell the bodies it consulted with NGOs, the concerns of NGOs may not be fully
reflected in the government’s final report. Thus, often, the strategies for working outside the
government may be more effective that working within.
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Shadow Reporting: General Points to Consider

It is important to ensure that the submission is written in easily accessible language,
bearing in mind that submissions serve the purpose not only of providing information
to the treaty bodies but also for policy makers and activists alike. It is very important
to keep in mind that Committee members suffer from information overload. Therefore,
the easier a document is to read, both in terms of content and format (i.e. use lots of
headings and a reasonable size font) the better. Terminology should always be
consistent and, where necessary, explained early in the text (i.e. why using the term
“people of color” and to whom this refers).

All paragraphs should be numbered for easy reference.

The information should, where appropriate and possible, cut across gender and
different racial/ethnic minority groups.

Brief is better…if you think the point can be made and the recommendation which
follows supported in a very short space, keep it short. Just because an issue only takes
one page to explain does not mean it will be considered any less important than a
lengthy one. Certainly for Committee members, a short, concise argument will seem
more approachable and the better choice on which to spend their limited time.
B.
Drafting the Shadow Report
The following section describes in detail the various components of drafting a shadow report; it
is, however, only a guide and other approaches could be equally or more effective for your
organization’s purposes.
(1) Describe the human rights situation
Here is where you describe the who and the what of your issue. Presentation and analysis are
critical aspects of the shadow reporting process, and your report should be both emotionally
compelling as well as factually persuasive.
Statistical data and case studies greatly enhance the report. The U.N. refers to such information
as “indicators” and they are helpful in assessing and formulating a response to the human rights
situations being presented in the report. Some basic principles for developing indicators
include:

the need to break down and categorize—disaggregate—data by variables such as
ethnicity, gender, age, region (especially urban/rural), language, religion, or other
minority factors, including refugee and internal displacement.
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
the need for case studies – testimonies and narratives that “tell the story” in its most
human terms.
The importance of accessible, objective, and comprehensive sources for this information is clear.
NGOs should investigate a range of sources of information, such as reports from academic or
independent institutions, government studies, censuses, local agencies, and national and
international NGOs.
NGOs should compile key statistics and choose two or three case studies to illustrate the human
rights aspect of their report’s issue(s) or theme(s). Where possible, include information on
people of color across social and economic groupings and identities. Case studies should be
brief (a paragraph or two) and it should be clear from the accompanying analysis that the story
(if it talks about an individual case) is representative of an entire constituency’s experience,
rather than an isolated incident.
(2) Identify the key article(s) of the treaties
It is important to provide a clear explanation of the how the issue you are presenting is one
specifically addressed by the treaty. For example, under ICERD you must describe how the
issue is one of racial discrimination and to link the issue to the specific ICERD articles.
Emphasize the relevant provisions of ICERD and, where appropriate, describe the rights (see in
particular articles 2 and 5) being violated as a consequence of governmental action or failure to
act.
Also remember that the treaty bodies are constantly elaborating on the content of the rights
protected by the treaties through General Comments and Recommendations, laying forth their
authoritative interpretation of states’ obligations under the treaties.5 The elaborations in the
General Comments can provide useful grounding for holding the government accountable to
specific obligations.
(3) Identify current laws and the government’s implementation record
Broadly sketch — to the best of your knowledge and where relevant — the federal and state
laws and regulations that apply to the situations described in your report. Identify any specific
institutions or authorities charged with enforcing the laws in your identified area and include
your understanding of how the U.S. Constitution applies to your described situation(s).
Once the laws have been identified, then identify who needs to be trained or made aware of
them: judges, police, prosecutors, advocates, school administrators, teachers, etc., and show how
these laws would apply to the case studies in your report. Explain to what extent the
communities you work with, and who are represented in the case studies, have benefited from
the laws at the national and local levels. Best practices should also be highlighted here.
In particular, NGOs should use the government’s previous reports to the treaty bodies, and the
subsequent Committee comments on those reports, to identify areas where the government has
5
See Section III.B.
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met or not met its objectives. This element is key, because it demonstrates that NGOs are
observing what the state has committed itself to in its international statements, and what the
international community expects from the state, and that civil society will hold the government
accountable. Links to the previous reports and comments are in Section VI below.
(4) Identify obstacles to achieving full implementation of the treaties
In reference to the issues or themes you have chosen to focus on, discuss the obstacles that
communities face in achieving the rights or protections at the local, national and international
level. Include obstacles faced in the private sphere – i.e., family, business, private schools or
churches. Under ICERD, for example, you should examine the entire range of factors affecting
people of color’s lives, including such things as lack of access to education, information, or
resources. Note specific obstacles, such as people of color not being able to afford a lawyer, or
having little access to power brokers. Discuss whether existing legislation and policy addresses
the situation described in your report. If relevant, refer to the U.S. government report to CERD,
particularly if your report directly challenges the government’s position or assertion.
Also detail the ways that social attitudes, cultural expectations, media representations, and
things such as usual business practices can be discriminatory. For example, do employers tend
to believe certain racial/ethnic groups are incapable of performing certain jobs? Do medical
professionals tend to believe certain racial/ethnic group’s nutrition or health is less important
than that of the general population?
Further, identify how the inability of communities to enjoy equality in the area you are reporting
on affects their ability to enjoy other rights in other areas, or places them at risk of other rights
violations. For example, look at the way the lack of education affects employment choices and
economic status, among other things, of people of color.
(5) Recommendations
Identify what steps should be taken by the federal and state governments to address the
obstacles to achieving racial equality and to redress the situation presented in your report. 6
Include not only legislative action, but also education and public awareness campaigns, funding
of programs, and other types of affirmative steps. For example, if your issue or theme is
environmental justice, you might recommend training programs and the involvement of
community groups in that training. Also identify some key indicators for holding your national
government accountable and explain how you would want the treaty bodies to measure the
government’s progress over time.
Draft sample “Concluding Observations” for the Committee that include specific actions to be
taken by the U.S. federal government, or by state governments, that will address the obstacles
identified. Recommendations should be concrete and linked to a time line. For example,
“government should improve services for refugees of all ethnic groups,” would not be concrete.
A better way to formulate this would be, “government should: (a) collect accurate data on the
This refers also to private actors which receive government support and/or which are able to carry out racially
discriminatory actions as a result of the government’s failure to act.
6
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needs of people of color in (the specific area); (b) coordinate with local groups on an assessment
of needs for different ethnic groups; (c) review current laws to ensure that they address the
needs of refugees of all ethnic groups (in the report area); (d) train relevant personnel to ensure
that policies and laws are implemented fairly; and (e) provide grants, without justifiable
discrimination, to groups that provide services to refugees.
Shadow Reporting: Information Checklist
Check to make sure that the main body of your shadow report contains the following
features:
 A reference to the appropriate article(s) of the treaties (this could be a numerical
and abbreviated reference in the main body of the text, with a full copy of the primary
articles of the treaty in an appendix);

References to national, constitutional, and state laws relevant to the report;

Indicators such as statistical data and case studies;

Identification of key actors responsible for implementing necessary laws and directly
responsible for violating the right to freedom from discrimination and the right to
equality ;

Supporting documentation for allegations of human rights violations;

Strategies for change.
(6) Submission of the report to the CERD
The shadow report should be sent directly to the treaty body. Although, there is no official
deadline for the report, the more time that members of the Committee have to review the report,
the more effective it may be. In any case, shadow reports should be submitted after the U.S.
report so they can address the content of that report, but before the scheduled oral review of the
country. For CERD, the best time to submit shadow reports is early January for the March
session, and May for the August session.
A key issue to consider is that of translation. Although many members of the CERD are fluent in
English, some are not. Translating the report into at least Spanish and/or French will greatly
increase the likelihood that it will be given full attention by all the members of the body.
Particularly if the Rapporteur for the U.S.’s report is not fluent in English, the shadow report
should at least be translated into a language the Rapporteur can understand. Translation of a
10-15 page report can run into the thousands of dollars, so it is important to budget for this at an
early stage. Sharing costs with coalition partners can help to defray expenses in this regard.
Shadow reports should be sent to the following address:
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OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
The United Nations Committee on the Elimination of All Forms of Racial Discrimination
8-14 Avenue de la Paix
1211 Geneva Switzerland 10
Tel: +41 22-917-9000; Fax: +41 22-917-9006
The cover letter should be addressed to the “Chair of CERD”.
C.
Engaging the Committee
(1) Lobbying Strategy
Beyond submitting a shadow report to CERD, NGOs should consider sending one or more
representatives to the Committee session when the U.S. is scheduled for review. As noted above,
there are usually two sessions where U.S.-related activity will occur: first, when the CERD gives
its draft questions to the U.S. representatives, and then the following session when they have
the full hearing. Although there will be more opportunity for substantive interaction with the
Committee at the latter session, groups should also consider sending representatives to the
earlier meeting, as the questions asked can greatly influence the direction of the follow-up
hearing.
At the session, NGOs will have the opportunity to observe the work of the Committee, and
monitor the presentation and responses of the national government representative. Although
there is no formal process for lobbying Committee experts and NGOs are not permitted to make
interventions during the review of a government, NGOs may informally lobby the Committee
experts prior to the session and during the lunch break to help shape the questions posed to the
national government representatives.
As far in advance as possible, NGOs should consult with organizations which have U.N.
ECOSOC consultative status (e.g. Global Rights) to find out how to obtain U.N. passes for the
session.7 Such NGOs can also provide guidance on how to approach the Committees’
international experts. For participating NGOs, this reporting process can be very useful for
domestic advocacy — particularly in challenging the national government to uphold promises
and to explain statements made to the treaty body. NGOs also have the opportunity to provide
the international community with more precise information as well as highlight best practices in
their part of the country.
An especially useful method of informal lobbying is through the use of lunchtime briefings with
the members of the Committees. These briefings, usually about an hour long, allow NGOs an
opportunity to make their case in vivid terms directly before the Committee examines the State
ECOSOC refers to the Economic and Social Council, which is responsible for the coordinating, rationalizing and,
to some extent, programming the activities of the United Nations, its autonomous organs and the specialized
agencies in all of these sectors. NGOs with consultative status may send observers to public meetings of the
Council and its subsidiary bodies and may submit written statements relevant to the Council's work. They may also
consult with the United Nations Secretariat on matters of mutual concern. NGOs wishing to work regularly with
U.N. mechanisms are encouraged to apply for ECOSOC consultative status. See section VII, Useful Information
Sources.
7
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Party. Arrangements for briefings should be made as far in advance as possible through
consultation with the secretary of the Committee and the Country Rapporteur. Given the
limited time while the Committees meet, it is important to coordinate these briefings with other
interested groups.
While in Geneva, NGOs should attempt to also coordinate their advocacy with the international
press. Press should be notified well in advance, and repeatedly, of the briefings once they are
scheduled. This is a tremendous opportunity to attract an international spotlight to your issue.
(2) Beyond the Committee: Accountability and Follow Up
Among the strategies to consider in releasing the shadow report is the timing — how and where
the report should be released to maximize its exposure is critical. For example, an excellent
time to release the report would be simultaneous with the occurrence of any national, regional,
or international conferences or meetings (attended by national government and/or NGOs
representatives) at which the report could be presented. Also, NGOs should investigate what
networks or sources can be tapped for publication and distribution of the report. There is also
the question of who should receive the report first — the national government, the press and the
public, or specific individuals, organizations, or agencies. All of these possibilities merit
consideration.
As part of their shadow report strategy, NGOs will want to consider possible follow-up
activities once the report has been prepared, submitted, and released to the public. Some of the
questions to consider when devising your overall strategy include: Will the national
government make an official report on CERD’s findings to the public? Do you want to make a
calendar to monitor the national government’s progress? Should you plan a debate with the
national, state, or local government about the differences in the official and shadow reports?
Would a public evaluation be more fruitful if presentations were limited to NGOs and other
actors in civil society? Bear in mind that one of the advantages of preparing a shadow report is
that it can then be used for a wide variety of purposes over an extended period of time.
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Model Shadow Report Structure
The following is a possible organizational structure for a shadow report under ICERD that
focuses on one U.S. state. However, the format and concepts could be easily adapted to a
different focus.
Table of Contents
Executive Summary (one page)





Welcome the U.S. government report.
Explain why you’re writing the submission on that particular state and how it links to
the federal situation (e.g. education policy is affected by decisions at both the state and
federal levels and the sample state’s situation, while not identical to the approach of
other states, does implicate the Convention and does provide the Committee with some
insight into education issues at the state level.)
Political/social context for submission (e.g. traditionally disadvantaged communities
are excluded from decision-making processes that create education policy. This
strategy has been rooted in racial discrimination and abuses of human rights and
enables the continued repression of these communities’ interests). This section sets the
mood of communities, usually in contrast to the government’s analysis of the state of
race relations.
Outline key issues/areas of concern raised in the submission (without providing detail)
List recommendations
Introduction




Welcome the U.S. government report
Contextualize the submission: a much more detailed explanation for why this
submission, including why you’ve written on that state and how it relates to the
Federal situation.
Political/social context for submission, including appropriate general statistics such as
the population percentages of different racial/ethnic communities in the state.
Broad overview of primary issue(s) being addressed in submission, perhaps one
paragraph on each issue (e.g. criminal justice, immigration etc.)
Main Body of Submission (see Section V.B. above)
Recommendations (see Section V.B(5) above)
Conclusion: A few paragraphs that draw attention to main overarching point (i.e. the U.S.
government needs to have a comprehensive rather than piece-meal strategy to tackling race
equality and must demonstrate greater leadership to the state governments). Thank CERD
for its consideration of the NGO submission.
Appendix: A paragraph describing each contributing NGO to the shadow report.
Appendix: Additional documentation.
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V. OTHER CONSIDERATIONS IN SHADOW REPORTING
The process of shadow reporting can, and should, be useful in many ways beyond the
production of the document itself.

Internal Organizational
Civil rights and social justice organizations should not regard the shadow reporting process as
an extraneous task outside their mission. Rather, organizations should review their
institutional goals and identify where the use of the international law and mechanisms could
complement and advance the work they are doing already. Many of the ways the process can
help are described further below.

Public Relations Goals in the U.S.
Many state and local organizations often find it difficult to get media attention for their issues.
Taking their causes to the international level offers several opportunities for increased visibility.
First, the groups may gain access to international press for whom the organization’s cause may
be more fresh, which can help raise the profile of the cause in its own right. Additionally, the
interest of the international press can in turn influence the domestic press to begin covering the
cause as well. Finally, because the international human rights framework remains somewhat of
a novelty in this country, by reframing the abuse a group is confronting as an international
human rights violation, it may be able to draw additional attention from domestic media outlets.
By having a public relations strategy in place through all parts of the shadow reporting process,
from the issuance of the state report, through the Committee hearings, to the Concluding
Observations, as discussed more in depth below, the organization can maximize the benefit it
gets from investing in the shadow reporting process. An example of a high-visibility press
release from the publishing of the last report with “A Call to Action” issued by 45 prominent
civil rights leaders is attached as Appendix 3.

Advocacy in the U.S.
NGOs should begin by considering both the domestic and international usefulness of creating a
shadow report as it relates to their agenda, mandates, and resources. For example, they should
evaluate the strategic uses of such a report in: (1) identifying sources of information; (2)
coalition building; and (3) working with the national government. The usefulness of creating a
shadow report can be evaluated by its function in providing additional information to the treaty
Committees that is absent from the national government’s reports. It is also useful in an ongoing
way to monitor national responses, to conduct domestic media and education campaigns, and to
critique the national and state government’s stands on issues such as racial discrimination.
While the big events of the shadow reporting process occur far away in Geneva, the primary
purpose that groups have in utilizing the process is to generate accountability here at home.
With sufficient planning in advance, especially as regards media coordination, as discussed
above, the impact of the shadow reports can stretch far beyond sending the report off to the
Committee. For example, the research for the shadow reports can begin with town hall
meetings with impacted community members, to describe the process and what it can hold for
them. The effect of the reports can be multiplied through coordination with other groups as
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reports come together. Before groups are leaving for Geneva, they can stop over in Washington,
D.C., to hold meetings with their Congressional representatives and agency officials to discuss
the issues they raise in their reports. As the Committee meets and groups attend meetings, they
can share their experiences with their members back home through blogging. And when the
Committee issues its Concluding Observations, it is up to NGOs to publicize the
recommendations through op-eds in general circulation media and articles in their own
newsletters to hold the U.S. accountable to its international obligations.

Priorities and NGO Coordination
As discussed above, the importance of NGO coordination cannot be understated in making the
shadow reporting process effective. Given the diversity among various kinds of NGOs their
mandates, and activities, entities preparing joint or collaborative reports should anticipate
discussions concerning divisions of labor, editorial decision-making, and resource sharing. This
coordination should begin, if possible, before the issuance of the report, in order to have a rapid
response when the report is issued, publicizing the report in the media and responding to areas
of concern.
Once the government report is issued, groups need to assess the report and begin doing outreach
to affected populations who are not yet involved in the process, to ensure maximum
inclusiveness of issues. Given the size of the U.S., and also its federal/state structure, there is
potentially much information to be submitted to the treaty bodies, addressing a range of issues
and also perspectives. To avoid duplication and in consideration of the limited resources or areas
covered, many NGOs will consider making joint submissions. Choosing themes or issues in
common with other NGOs (social justice organizations, human rights groups, civil rights
groups, community organizations etc.) will facilitate the creation of information-gathering
alliances and/or enhance solidarity among existing coalitions. Working together with other
NGOs will also advance the production and distribution of the shadow report. This can result
in either fully joint reports or coordinated individual reports, depending on group need. Above
all with ICERD, but with other treaties as well, special attention should be given to reaching out
to non-mainstream groups and minorities, with emphasis on those communities that may be
facing intersectional discrimination, such as on the basis of gender or religion combined with
race. As noted above, the drafting of the proposed questions, the testimony before the
Committee, and the shadow reports themselves must be coordinated in order to ensure total
coverage of issues while also prioritizing them, so the Committee is not swamped by
information and distracted by issues of lesser importance to groups here at home.
Groups should be aware that there are many ways they can contribute to the shadow reporting
effort without drafting an entire report and heading to Geneva themselves. By coordinating
with larger organizations, smaller groups with fewer resources, but more on-the-ground
knowledge can get their information to those larger organizations that can then integrate it into
a joint report. Alternatively, smaller groups can work with law school clinics to help them in
drafting their own report. Or groups can simply be part of a reviewing subcommittee will look
at the shadow reports before they are submitted to ensure non-mainstream voices and issues are
not being omitted. And for groups that cannot make the trip to Geneva, it is essential that they
communicate their priorities to those who can attend to ensure they are not lost in the oral
presentations and informal lobbying. Most importantly, with all groups publicizing events
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through their networks, the greatest number of people can be informed about the process, and
mobilized to hold the government accountable for its obligations. Finally, in addition to the
immediate benefits of coordination, hopefully groups can find new allies for their causes and
continue working in concert in the future.
VI. CONCLUSION
The overall goal of the shadow report is to achieve greater government accountability for and
protection of all people’s human rights under domestic and treaty laws. The process of
preparing the report should contribute to and strengthen existing initiatives and coalitions.
The discussion of the treaty bodies and their concluding observations can never be predicted
and NGOs should be aware that a Committee many not necessarily address all of their issues.
Also, the preparation and submission of NGO shadow reports require considerable time,
planning, effort, and resources. Nevertheless, the impact shadow reports can have in making the
treaties more effective and more relevant for all; on influencing policy-makers in the U.S.; and on
raising awareness about racism as a violation of human rights, often make shadow reporting a
worthwhile endeavor.
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VII. USEFUL INFORMATION SOURCES
-U.N. Office for the High Commissioner for Human Rights website
http://www.unhchr.ch
-Copies of U.N. treaties:
http://www.unhchr.ch/html/intlinst.htm
- Information on obtaining ECOSOC consultative status
http://www.un.org/esa/coordination/ngo/
or contact
United Nations, NGO Section, DESA, 1 U.N. Plaza/DC 1 – 1480, New York, NY 10017
Email: desagngosection@un.org Tel. 212 963 8652, Fax. 212 963 9248
-Treaty documents (including general recommendations, concluding observations etc)
http://www.unhchr.ch/tbs/doc.nsf
http://bayefsky.com/
http://www1.umn.edu/humanrts/
-U.S. Government Report to CERD (2000)
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument
-CERD Concluding Observations on the 2000 U.S. report
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.56.18,paras.380-407.En?Opendocument
-U.S. Government Report to HRC (1995)
http://www.bayefsky.com/reports/usa_ccpr_c_81_add.4_1994.php
-HRC Concluding Observations on the 1995 U.S. report
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/b7d33f6b0f726283c12563f000512bd1?Opendocume
nt
-U.S. Government Report to CAT (1999)
http://www.state.gov/www/global/human_rights/torture_index.html
-CAT Concluding Observations on the 1999 U.S. report
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/59a7a114139ef798802568e3004e289e?Opendocume
nt.
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Appendix 1: NGO Shadow Report: a sample
Below is an extract from a joint report submitted to CERD by Americans for a Fair Chance and
Global Rights (under its prior name, the International Human Rights Law Group) in the
summer of 2001.
CALIFORNIA SHADOW REPORT:
Affirmative Action in Higher Education
Americans for a Fair Chance
International Human Rights Law Group
C. Russell Clause
Wilmer, Cutler & Pickering
July 9, 2001
This report covers events through May 2001
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INTRODUCTION
Although we welcome the Initial Report of the United States of America to the United
Nations Committee on the Elimination of Racial Discrimination, we believe that it
underestimates the severity of the level of racial discrimination present in many parts of the
country, including the subject of this report, California. As the most populous U.S. state,
California suffers from many of the racial problems identified throughout this Response. Indeed,
California is a fascinating state to study because it presents a kind of microcosm of the whole
American society.
In its racial problems, as much as with its thriving industries, scenic wonders, and
diverse populace, California often leads the way in the United States. California’s racial
demographics have been changing dramatically in recent years, with the state having recently
become the United States’ first large “majority minority” state or, in other words, a state in
which white citizens no longer make up a majority of the total number of citizens. Indeed, since
1970, the white population of California has shrunk from 77% to just under half.8 During this
same period, the portion of the state’s population composed of black, Latino, and Asian citizens
has grown proportionately. As of the 2000 census, California’s population was about 47%
white, 29% Latino, 11% Asian-American, 6% black, and 2% made up of other races. About 5% of
Californians classified themselves as “multi-racial.”9
A recent survey of California citizens conducted by the Public Policy Institute of
California found that 81% of the 20,000 California citizens polled between April 1998 and May
2000 were satisfied with racial relations in the area in which they lived.10 A majority of citizens
in each of California’s four largest racial groups (whites, blacks, Latinos, and Asians), indicated
that they were aware that the state’s demographics have been changing recently, and that they
still believed race relations were good in the state and would be improving in the future.
Although there was disagreement on some of the more controversial issues involving race such
as affirmative action, which was supported by 78% of blacks, but opposed by 72% of whites, and
racial profiling, with only 43% of whites believing that police target minorities based upon race,
as opposed to 82% of blacks and 65% of Latinos, the overall picture depicted by the survey was
largely optimistic.
We present this shadow report because we believe that the issue of affirmative action in
education did not receive a sufficient level of attention in the U.S. Report. Affirmative action in
education is a touchstone racial issue in Californian and American society today. Unfortunately,
the news in California on this issue also is not very good. From 1995, when the use of affirmative
action for making admissions decisions at California’s public universities was banned by
Public Policy Institute of California, Press Release, “Cause For Cheer, Concern in Study of Racial
and Ethnic Attitudes,” Jan. 4, 2001 (hereinafter “PPI Survey”); Solomon Moore, “Survey Finds Optimism in State
About Race Relations,” Los Angeles Times, Jan. 4, 2001, no page number available (hereinafter “Moore I”). The
Public Policy Institute is a nonprofit organization that conducts nonpartisan research on economic, social, and
political issues that affect the lives of Californians.
9
Maria L. LaGanga and Shawn Hubler, “California Grows to 33.9 Million, Reflecting Increased
Diversity,” Los Angeles Times, Mar. 30, 2001, at A1.
10
PPI Survey; Moore I.
8
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referendum, until today, minority admissions at the state’s top schools have declined
dramatically and show no sign of recovering anytime soon. Until they were dropped, affirmative
action programs had played a crucial role in Californian society for the last three decades by
dispersing opportunities more broadly. However, the state’s abandonment of these programs
now threatens to reverse long-term social trends towards eliminating entrenched
discrimination, while also depriving California of an entire generation of multicultural business
and political leaders which will be vital for dealing with the challenges and problems that may
arise as the state moves toward a future in which white citizens will represent a progressively
lower percentage of the population.
Since they came into widespread use in American society in the mid- to late-1960s,
affirmative action programs have aided innumerable minority students in gaining educational
opportunities that lingering discrimination otherwise might have prevented them from
experiencing. By opening up the nation’s best universities to more minority students,
affirmative action was one of the greatest, but most misunderstood, success stories of late
twentieth century American life. Moreover, as discussed below, no viable alternative to welltailored, comprehensive affirmative action programs ever has been proposed.
Affirmative action programs are not important solely because they are a means of
remediating the insidious racial and ethnic-based discrimination that still pervades too many
facets of U.S. life. These programs also embody the nation’s continued commitment to make real
the dreams of civil rights pioneers like Abraham Lincoln and Martin Luther King Jr. Banning
affirmative action in this day and age in which racial discrimination still leads to wildly
disparate results when it comes to the opportunities available to white, black, Latino, Asian
American, and Native American U.S. citizens simply is unwise and unfair. Such a decision
represents a stark refutation of the core principles of freedom and equality on which the United
States was founded, but which we, as a people, still have not entirely achieved. Thus, in the
words of Martin Luther King Jr., if this nation ever is to “rise up and live out the true meaning of
its creed[:] We hold these truths to be self evident that all men are created equal,” 11 it must
remain steadfastly committed to wise and necessary programs like affirmative action which
attempt to ennoble and empower us all, while building a truly just society.
Martin Luther King Jr., “I Have a Dream” Speech, at Washington, D.C., Aug. 28, 1963 (full text
available at http://www.holidays.net/mlk/speech.htm).
11
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ANALYSIS
A.
Introduction
1.
ICERD Article 7 provides:
States Parties undertake to adopt immediate and effective measures, particularly
in the fields of teaching, education, culture and information, with a view to
combating prejudices which lead to racial discrimination and to promoting
understanding, tolerance and friendship among nations or ethnical groups. . . .
Similarly, Article 5 provides in relevant part:
States Parties undertake to prohibit and to eliminate racial discrimination in all
its forms and to guarantee the right of everyone, without distinction as to race,
colour, or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights:
...
(e) (v) The right to education and training. . . .
On the issue of taking active or so-called “affirmative” steps to eliminate racial
discrimination, two Articles are important. Article 2(2) states:
States Parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, special and concrete measures to ensure the
adequate development and protection of certain racial groups or individuals
belonging to them, for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms. These measures shall in
no case entail as a consequence the maintenance of unequal or separate rights for
different racial groups after the objectives for which they were taken have been
achieved.
Relatedly, Article 1(4) explains:
Special measures taken for the sole purpose of securing adequate advancement of
certain racial or ethnic groups or individuals requiring such protection as may be
necessary in order to ensure such groups or individuals equal enjoyment or
exercise of human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups and that they
shall not be continued after the objectives for which they were taken have been
achieved.
Finally, regarding the issue of federalism, Article 2(1)(c) requires that:
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Each State Party shall take 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.
2.
The recent history of affirmative action in California higher education has been a story of
missed opportunities. California has been moving in the wrong direction on these issues since
1995, when it ceased relying on affirmative action principles at its flagship universities in the
nine-campus University of California (“UC”) system, which enrolls more than 160,000 students.
This mistake was then compounded in 1996, when a state-wide voter initiative called the
California Civil Rights Initiative (aka, “Proposition 209”) passed, banning the use of affirmative
action in all public education decisions throughout the state.
3.
As a result of these retrograde actions, thousands of minority California students have
been deprived of crucial educational opportunities they otherwise would have enjoyed, and all
California students, regardless of race, nationality, and ethnic origin, have been denied beneficial
multicultural experiences that they would have known if affirmative action had not been
discontinued.
4.
These unfortunate social consequences come during a time at which California just has
become the nation’s first large majority minority state, as discussed above. Thus, in an era when
diversity and maximization of opportunity should be most valued and encouraged, California, a
state so often at the forefront of social change, finds itself drifting against the tide of historical
progress.
5.
In its Report, the United States attempts to disclaim responsibility for enforcing
affirmative action policies throughout the country on the grounds that such issues fall within
the states’ bailiwick under the federal system of government. However, this “federalism defense”
falls short for several reasons. First, when a nation enters into an international agreement, it
assumes responsibility for ensuring the compliance of its subordinate political entities. The
American constitution provides explicit authority for the federal government to enforce
principles of equal protection and due process within state systems. The U.S. government
historically has relied on this authority to enforce civil rights in recalcitrant states. Quite
simply, there is no reason that these constitutional provisions cannot be invoked in support of a
federal effort to ensure the re-implementation of affirmative action in states which have
abandoned it, like California. Moreover, when it ratified the ICERD, the U.S. Senate explicitly
expressed its understanding that “the Federal Government shall, as necessary, take appropriate
measures to ensure the fulfillment of this Convention.” Thus, by its own design, the federal
government has assumed responsibility for ensuring compliance with the ICERD. The U.S.
cannot shirk this sovereign duty by citing the politically convenient, but legally false, defense of
federalism.
6.
In any event, whenever a jurisdiction as large, varied, and important as California
embarks on a voyage as ill-fated as the state’s recent decision to ban affirmative action, an
analysis of the implications of the decision must begin with an examination of how a state filled
with such enormous potential could pursue such a flawed and senseless policy.
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B.
The History of Affirmative Action at California’s Public Universities
7.
In order to understand the harm that has been done by eliminating affirmative action in
California’s schools, one first must grasp the enormous, beneficial social changes that affirmative
action had a large role in creating. For example, in 1940, a full 75 years after the end of the Civil
War, an astounding 93% of all U.S. black citizens lived below the poverty line. 12 The average
black student received about seven years of education, and only two percent earned a college
degree.13
8.
Although the opportunities created by northern industrialization and a strong economy
sliced this figure to 55% by 1960, a majority of the United States’ black citizens still lived in
poverty as recently as 40 years ago.14
9.
Until the 1960s, California’s public universities, particularly its most prestigious
campuses, were almost exclusively white.15 As one author described UC’s Berkeley campus
during the 1930s:
“[it was] 99.9 percent white. I didn’t know of a single American-born black
student at Berkeley in the thirties. . . . [If affirmative action had been suggested,]
it would have been rejected at just about every hand, student, and faculty
irrespective of political ideology, or anything else.”16
10.
If it is even possible, professional programs at these schools were even more exclusively
reserved for white students at this time. Thus, between 1955 and 1968, of the 764 students who
received medical degrees (M.D.s) from UCLA, not one single graduate was black or Hispanic.17
Similarly, black and Hispanic students together constituted less than one percent of the class of
UC Berkley’s Boalt Hall School of Law in 1967.18 Even at UCLA’s law school, which had made
somewhat more progress in this area, black and Latino students together accounted for only
eight percent of the 1967 class.19
11.
In the wake of the Supreme Court’s 1954 Brown v. Board of Education desegregation decision
and President Lyndon Johnson’s 1965 decision to adopt affirmative action for various federal
contracts and employment programs, California’s public universities began using affirmative
12
William G. Bowen, et al., The Shape of the River 1 (Princeton Univ. Press, Princeton, 1998)
(hereinafter “Bowen I”). This figure can be compared, for example, with the fact that only 53% of all of South
Africa’s population lived below its poverty line in 1998 even though a sizable portion of that country’s population is
white. See “Poverty Hearings to Begin in Bloemfontein,” Daily Dispatch (South Africa) On-Line, Feb. 5, 1998
(available at http://www.dispatch.co.za/1998/02/25/ southafrica/bloemfon.htm) (no author listed).
13
Bowen I, at 1.
14
Id.
15
Jerome Karabel, “The Rise and Fall of Affirmative Action at the University of California,”
Journal of Blacks in Higher Education 109, Autumn 1999 (hereinafter “Karabel I”).
16
Id. (quoting Robert Nisbet, The Degradation of the American Dogma, The University in America,
1945-1970 (Basic Books, New York, 1971), no page number available).
17
18
19
Karabel I, at 109.
Id.
Id.
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action in the late 1960s in an attempt to boost minority enrollment to a level roughly
corresponding to minority population in the larger society.
12.
Positive effects were almost immediate. For example, between 1967 and 1969, black
enrollment at the UCLA School of Law increased from six to 8.7 percent. At Berkeley’s School of
Law, the figure went from about one percent to four percent, and at UCLA’s School of Medicine,
black enrollment rose to 5.6 percent.20
13.
While affirmative action was employed in slightly different ways between 1969 and 1995,
the positive social changes it unleashed in California were both cumulative and exponential. In
other words, every minority California student who benefited from affirmative action was able
to play a more useful and beneficial role in California society after graduation due to the
increased opportunities opened up by a better education. Over time, these individual advances
cumulated into a state-wide accomplishment larger than the sum of its individual success
stories. Moreover, the effect also was exponential, in that every minority student who was able
to “get ahead,” then was able to pass down the secrets and skills of success to each generation of
younger minority citizens.
14.
By the mid-1990s, black students made up 6.8% of all undergraduates admitted to
Berkeley, and Latinos represented 15.4 percent.21 System wide, Latino undergraduate enrollment
at UC had increased 86% from 1980 to 1991, and graduate enrollment was up 61 percent. 22 More
generally, the beneficial effects of expanding educational opportunities could be observed
radiating throughout the wider California society. For example, Latino holders of bachelor’s
degrees increased from just 4.5% in 1970 to 9.4% in 1992.23 As another study noted, “AfricanAmericans and Latinos significantly increased their numbers as ‘Officials and Managers in Major
Companies’ between 1975 and 1993 from 2.6% to 4.5% for African-Americans and from 4.8% to
8.3% for Latinos.”24 Similarly, a respected nationwide study found that at least 300 of 700 black
students aided by affirmative action in the 1970s went on to become identifiable community
leaders, with more than 250 becoming doctors, lawyers, or business executives.25 The lesson,
then, is clear: affirmative action, properly applied, can greatly increase the chances of minority
students in getting ahead in life and making a real difference in the world.
15.
In many ways, the achievement of expanded opportunity through quality education lay
at the very heart of the California success story. By providing opportunity for less privileged
youngsters who might not otherwise have seen reason to hope for a better life, affirmative action
was a crucial component in the state’s ambition of building a thriving, prosperous multicultural
society during the latter quarter of the twentieth society. Indeed, it is fair to say that no
governmental program or policy was more instrumental or important in achieving that goal.
20
Id.
Transcript, “Losing Diversity,” The NewsHour with Jim Lehrer, PBS newscast, Apr. 1, 1998
(hereinafter “PBS Transcript”).
22
Americans for a Fair Chance Report, “Facts on Minorities and Education” (hereinafter “AFC
Report”).
23
Id.
24
American Civil Liberties Union (“ACLU”) of Southern California, “Affirmative Action in
California” (available at http://www.aclu-sc.org/reports/209analysis.html”) (no author listed) (hereinafter “ACLU
Report”).
25
Richard Flacks, “Getting to Yes,” Los Angeles Times Book Review, July 4, 1999, at 7.
21
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Nonetheless, as discussed below, California’s 1995 abandonment of affirmative action threatens
to endanger all of the successes that the state realized since the 1960s.
C.
The Campaign Against Affirmative Action
16.
To some extent, affirmative action always was controversial in California. However, the
real momentum toward its eventual abandonment only began with Republican Governor Pete
Wilson’s appointment of Ward Connerly to UC’s governing body, the Board of Regents, in 1993.
Upon joining the Board, Connerly, who is himself black, immediately began agitating for an end
to the use of affirmative action in California’s public universities.26 Connerly was supported in
his campaign by Wilson, for whom he was a major political contributor and fundraiser, and 1996
Republican Presidential candidate Bob Dole.27 His cause also was aided by the fact that, by 1995,
17 of the 26 members of the UC Board of Regents had been appointed by Republican governors
Wilson, George Deukmejian, and Ronald Reagan.28
17.
On July 20, 1995, the Connerly-led Board of Regents passed Resolutions SP-1 and SP-2
by votes of 14-10-1, banning any consideration of race or ethnicity in UC admissions.29 In so
doing, UC became the first major university in the U.S. to stop using affirmative action.
18.
Sixteen months later, by a racially-divided vote of 54% to 45%, California voters
approved a broader initiative, Proposition 209, which rendered illegal any consideration of race
or ethnicity in public education, employment, or contracting in California.30
19.
Resolutions SP-1 and SP-2 and Proposition 209 remained the law of the State of
California until May 2001, when the Board of Regents voted unanimously to drop their ban on
using affirmative action.31 However, while this action was symbolically important, it lacked any
legal effect since Proposition 209 remains in place to this day.32
26
Amy Wallace, “He’s Either Mr. Right or Mr. Wrong,” Los Angeles Times Magazine, Mar. 31,
1996, at 12.
27
Id.; ACLU Report.
ACLU Report.
29
Karabel I, at 110; Jerome Karabel, “No Alternative: The Effects of Color-Blind Admissions in
California,” in Gary Orfield, et al., Chilling Admissions: The Affirmative Action Crisis and the Search for
Alternatives 33, 33-34 (Harvard Civil Rights Project and Harvard Education Publishing Group, Cambridge, 1998)
(hereinafter “Karabel II”).
30
Karabel I, at 110; Dave Lesher, “Governments Step Unsurely Toward ‘Colorblind’ Goal,” Los
Angeles Times, Nov. 4, 1997, at A1. Proposition 209 provides:
[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the
basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or
public contracting.
Id.; see also Bill Stall, et al., “Prop. 209 Wins, Bars Affirmative Action,” Los Angeles Times, Nov. 6, 1996,
at A1.
31
Rebecca Trounson and Jill Leovy, “UC’s Regents End Affirmative Action Ban,” Los Angeles
Times, May 17, 2001, no page number available.
32
See, e.g., Rebecca Trounson and Kenneth R. Weiss, “Numbers of Blacks, Latinos Admitted to UC
System Rise,” Los Angeles Times, Apr. 4, 2001, no page number available (hereinafter “Trounson I”); Kenneth R.
Weiss, “Protesters in UCLA Sit-In Call for End to Ban on Affirmative Action,” Los Angeles Times, Mar. 15, 2001,
at B1; Becky Bartindale, “UC Regent Delays Push on Race Rule,” San Jose Mercury News, Mar. 8, 2001, no page
number available.
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D.
The Tragedy of Proposition 209: Back to the 1960s
20.
Minority enrollment at California’s best public universities has plummeted since the
schools were barred from using affirmative action. As a result, there has been an extremely
alarming “cascade” effect associated with these declines, with those minority students turned
away from the most elite schools and programs “cascading” down the educational “ladder” to
less prestigious and/or less selective schools and programs.33 This diminution in the
opportunities available to some of the state’s best minority students threatens to wipe out an
entire generation of future California civic and community leaders, as well as depriving all
students of the benefits that derive from being educated amongst a multicultural group of
peers.34
21.
The statistics discussed below demonstrate the magnitude of this tragedy in California
education. Moreover, although other statistics circulated over the last few years by opponents
of affirmative action sometimes seem to indicate that the consequences of ending affirmative
action have not been severe, it must be remembered that the numbers offered by opponents of
affirmative action often ignore or hide important demographic factors. For example, it was
reported that the UC system, as a whole, had “only” 27 fewer minority students matriculate in
1999 than in 1997 among a total class of 47,804.35 Although 27 sounds like an extremely small
difference, several other facts must be remembered in order to put this decrease in perspective.
First, the small decline in minority enrollment occurs at a time of rapidly increasing minority
population in California. Thus, to the extent that minority matriculation is not rising, relatively,
it really is falling precipitously as a portion of the available university-going population. Second,
matriculation of Asian-American students also has been rising over this period of time.
However, Asian-Americans are not a minority population towards which affirmative action
traditionally has been directed. Thus, to the extent that minority Asian-Americans are
matriculating in higher numbers, and thereby adding a proportionate increase to the level of
“minority” matriculants as a whole, other minority students, such as African-Americans and
Latinos, are matriculating at relatively lower rates.36
22.
With these keys to understanding the relevant data in mind, it can be recognized that
the educational disaster wrought by Resolutions SP-1 and SP-2 and Proposition 209 was
dramatic and immediate.37 For example, matriculation of black students at Boalt Law School on
33
See Adam Cohen, “When the Field Is Level,” Time, July 5, 1999, no page number available
(hereinafter “Cohen I”).
34
See, e.g., Laura E. Gomez, “Loss of UC Diversity Means Lost Opportunity for Law Students,” Los
Angeles Times, Sept. 24, 2000, no page number available (hereinafter “Gomez I”); Tanya Schevitz, “UC Regents
Urged to Step Up Minority Outreach at Schools,” San Francisco Chronicle, Jan. 21, 2000, at A23.
35
Cohen I; Michelle Locke, “Minority Admissions Up, Enrollment Down at Some Campuses,”
Associated Press State & Local Wire, June 19, 2000.
36
See Associated Press, “UC President Plans to Reexamine Admissions,” Los Angeles Times, Sept.
14, 2000, no page number available (hereinafter “AP I”).
37
Indeed, there is evidence that black and Latino applications dropped at UC after the enactment of
SP-1 and SP-2 even though the measures did not require an immediate end to the use of affirmative action, either
because minority applicants did not feel welcome at the schools or because they preferred to attend other schools
that did not have such hostile admissions policies in effect. Karabel II, at 34-35.
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the Berkeley campus dropped from 20 in 1996 to only one in 1997 -- a decline of 95 percent.38 At
UCLA’s law school, black matriculants decreased from representing 7.4% of the class in 1995 to
only 2.6% in 1997.39 The 1997 figures for both of these schools were the lowest since 1967, before
affirmative action first was being used by UC. Indeed, Boalt had enrolled an average of 24 black
students a year between 1968 and 1996 -- as compared to just one in 1997.40
23.
Even by the year 2000, only seven black students enrolled at Boalt Hall, as compared to
20 in the last year that affirmative action was used.41 At UCLA Law in 2000, only two percent of
the entering class was black, just as was the case immediately after affirmative action was
banned, as compared to 7.4% in the last year that it was used.42
24.
For the state’s five public medical schools, the decline also was precipitous. In 1993,
black and Latino matriculants made up 106 of 569 students (18.6%); by 1997, the figure was just
66 of 569 (11.6%).43
25.
The ban on affirmative action was devastating in terms of minority undergraduate
admissions. Between 1997 and 1999, Hispanic enrollment at the prestigious Berkeley campus fell
by 34%, and black enrollment was off by 57 percent. Berkeley’s 1999 freshman class included
only 13.6% of students who were black, Latino, or Native American, as compared to 21.5% in
1997.44 At UCLA, in the first year affirmative action was not used, black admissions fell by 43%
and Latino admissions declined by 33 percent.45 Overall, the percentage of black, Latino, and
Native American students entering the UC system in 2000 had fallen to 16% from the 22% figure
of 1995.46 Indeed, even staunch affirmative action foe Ward Connerly has conceded that
Proposition 209 cut minority representation on the Berkeley and UCLA campuses more than he
had envisioned, although admittedly he has not, by any means, altered his fundamental
opposition to affirmative action.47 Cascading also has been a major problem, with black
admissions concomitantly rising by more than 54% at UC Riverside, one of the system’s less
prestigious schools, and Latino admissions up by 66 percent, while the numbers fell at Berkeley
and UCLA.48
26.
The most recent statistics are little better. For example, although somewhat more instate Latino students were admitted to the UC system as a whole for matriculation this coming
fall, the increase is entirely attributable to the fact that the system now admits a higher portion
38
Karabel I, at 110, 112.
Id. at 110.
40
Ronald Dworkin, “Affirming Affirmative Action,” New York Review of Books, Oct. 22, 1998, no
page number available.
41
“Minority Enrollment Rises at Boalt Hall but Numbers of Black Students Still Low,” San
Francisco Chronicle, Aug. 26, 2000, at A17 (no author listed); Karabel I, at 112.
42
Gomez I; Karabel I, at 110.
43
Id. at 110-11.
44
See, e.g., Carlos Munoz, “The Nonstop Attack on UC’s Ethnic Studies,” San Francisco Examiner,
Feb. 11, 2000, at A21 (hereinafter “Munoz I”).
45
PBS Transcript.
46
AP I.
47
Anne Bejaminson, “Affirmative Action at UC-Berkeley; Five Years Later,” Daily Californian,
July 21, 2000, no page number available (hereinafter “Bejaminson I”).
48
Cohen I.
39
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of applicants of all races and ethnicities than it did in the past.49 More significantly, numerically
fewer black and Latino students were admitted to Berkeley and UCLA in 2001 than in 1997.
Indeed, black admissions to these top two schools are off by a full 40% during this period of
time. Thus, to the limited extent that Latino admissions, alone, have risen modestly in number,
the increase has tended to take place almost entirely at lower-ranking schools.50 Moreover,
Latino admission must be expected to have risen at least marginally, given the increasingly large
portion of the state’s population composed of Latino citizens.51 Overall, the trends for black
undergraduate students are even worse than for Latinos.52
27.
The effects of discrimination appear to worsen as one progresses up the academic chain.
For instance, while blacks and Latinos made up about 22% of the UC undergraduate student
body in 1996, only about 13% of UC’s doctoral degrees were awarded to black and Latino
students, and, even worse, only 8% of UC’s tenured professors were black or Latino. 53
28.
Of course, radical decreases in minority populations on the campuses of California’s best
public universities has not occurred in a vacuum without causing related deleterious effects. For
example, ethnic studies departments at many of these schools have been under sufficiently
hostile scrutiny of late that they fairly could be termed “under siege.”54 Moreover, the
environment created by Proposition 209 has rendered it difficult to make increasingly
outnumbered minority students feel at home on the UC campuses55 or, indeed, even on the
campuses of other elite California universities.56 Finally, the campus atmosphere for some
minority students has deteriorated to the point that they no longer even feel welcome to attend
top California schools even if they are admitted, thus causing the relevant admissions numbers to
decline even further.
______________________________________________________________________________
Case Study: Negative Secondary Effects of Ending Affirmative Action -- Social Exclusion
Karen Fleming
UC Irvine student Karen Fleming, a black student, turned down an offer to attend UC Berkeley, the California
system’s best public university and perhaps the best public school in the United States, simply because she did not
feel welcome on the increasingly all-white Berkeley campus.57 Although Irvine unquestionably is a good university,
it, of course, cannot match the resources and accomplishments of Berkeley, its much older and more established
northern rival. For example, although such measures do not necessarily reflect overall quality, Berkeley recently
was ranked as tied for the twentieth best U.S. “national university” by U.S. News and World Report, while Irvine was
49
Trounson I.
Id.; see also Rebecca Trounson and Kenneth R. Weiss, “Minorities Up 42.5% in UCI’s Fall
Admissions,” Los Angeles Times (Orange County Edition), Apr. 4, 2001, at B1.
51
Trounson I.
52
Id.
53
Bejaminson I; Munoz I.
54
Munoz I.
55
Cohen I.
56
Editorial, “Declining Enrollment -- Has Proposition 209 Deterred Minorities from Applying to
Stanford,” Stanford Daily, Nov. 4, 1999 (speculating that Proposition 209 might even have depressed minority
applications at Stanford University, a private school which retains affirmative action, simply because many minority
students no longer wish to attend school in California).
57
Cohen I.
50
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ranked as tied with two other schools at forty-first place.58 Explaining her decision, Fleming stated, “[a] lot of
universities, including Berkeley, have a cutthroat attitude -- I’m going to do well and I don’t care about you. . . . This
campus has more of a family feeling.” 59
____________________________________________________________________________________________
E.
The Affirmative Action Debate Today
29.
The negative effects of reducing or eliminating affirmative action have not been
experienced only in California in recent years. Indeed, in Texas, where the flagship University
Texas campus at Austin was required by the Fifth Circuit Court of Appeals to cease using
affirmative action in making admissions decisions, the law school graduated a mere five black
students last year, the same number as in 1950, the year that the U.S. Supreme Court ordered an
end to the racial segregation that long characterized that state’s university system.60 Moreover,
campus-wide, black admissions fell from 438 in 1996 to 320 in 1998; and Latino admissions were
reduced from 1,600 to 1,401, while both white and Asian-American admissions increased
significantly.61
30.
A similar situation also has developed in Florida under Republican Governor Jeb Bush.
Contrary to Bush’s claims that his plan to boost diversity in the state’s universities would
succeed without the use of affirmative action, recent statistics indicate that the percentage of
black and Hispanic students that enrolled in the state’s schools during the first year of the
governor’s plan actually declined.62
31.
Since the passage of Proposition 209 in California, many commentators have offered
suggestions on ways to achieve representative racial diversity on California’s public university
campuses without relying on the traditional principles that have characterized affirmative
action in the United States for the last 35 years. Some of these alternatives have not been offered
in good faith -- they merely represent eviscerations of the dedication to equality that should
characterize U.S. educational policy. However, other alternatives have been offered by those
who truly wish to assist in the broadening of equal opportunity for all. Unfortunately, however,
none of the alternate methods of making admissions decisions, regardless of the offerors’
motivations, represent genuine, viable alternatives to well-tailored, comprehensive affirmative
action programs.
32.
Perhaps the most widely debated alternative arrangement for promoting equal
opportunity in education has been to replace traditional affirmative action’s focus on the race or
ethnicity of the applicant with a focus instead on the applicant’s socio-economic background or
“class.”63 This alternative is attractive to some because it arguably would have the effect of
“2001 College Rankings,” U.S. News and World Report (available at http://www.
usnews.com/usnews/edu/college/rankings/natunivs/natu_a2.htm).
59
Cohen I.
60
Gomez I; see also Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 518 U.S. 1033
(1996).
61
Affirmative Action and Diversity Project Report, “University Enrollment in the Post-Affirmative
Action Era,” University of San Diego (available at http://aad.english.ucsb.edu/docs/1998-admit.html).
62
See Scott Powers, “Diversity Tumbles in Freshman Class,” Orlando Sentinel, May 17, 2001, at
A1.
63
See, e.g., Richard Kahlenberg, The Remedy: Class, Race and Affirmative Action (Basic Books,
New York, 1996).
58
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helping poor students of all races and ethnicities to gain educational opportunities that they
might not otherwise enjoy. Moreover, since minority students in California often tend to come
from lower than average economic backgrounds, it is true that a class-based system of
affirmative action might help certain minority students more than no system of affirmative
action.
33.
Nonetheless, an economics-based system of affirmative actions simply will not produce
academic classes of the varied racial and ethnic diversity produced by more typical forms of
affirmative action.64 Although related, class-based and racial disadvantages do not necessarily
correlate. Indeed, because racial differences often are more pronounced in lower income groups
than in higher income brackets, a class-based system largely would benefit low-income white
students.65 Thus, although a class-based policy might expand opportunity to some limited
number of minority students, it will not reach the root cause of continued educational inequality
in the United States -- i.e., systematic racial and ethnicity-based discrimination that, although
perhaps not as pervasive as it was fifty years ago, still is sufficiently widespread to require a
remedy specifically tailored to address the problem.
34.
Several states, including California, Texas, Florida, and Pennsylvania also either have
considered or actually have implemented programs under which high school seniors in the top
few percentage points of their graduating classes automatically are entitled to admission at the
state’s public universities. In California, the top 4% of every graduating class currently is
entitled to admission to at least one UC campus.66 In September 2000, UC President Richard C.
Atkinson proposed extending this program to the top 12.5% of each graduating class as long as
the new students started their studies at a community college. This expanded program would
“capture” many of the minority students who barely miss out under the current 4% program. 67
However, several problems remain. First, opponents of affirmative action already have
questioned whether this program would be constitutional if it is motivated by racially-based
considerations. Second, the plan again only roughly corresponds with the conditions of racial
and ethnic-based discrimination which characterize U.S. society because it is based on rank in
graduating class, rather than racial and/or ethnic background.
35.
In another recent, relatively bold move, President Atkinson proposed dropping the SAT
and ACT standardized tests as requirements for admission to the UC system.68 If adopted, this
change in policy would be of crucial importance for minority students seeking admission to
California’s public colleges for several reasons. First, these tests, of course, long have been under
attack for being unrepresentative of individual student’s abilities and discriminatory in effect
towards minority students.69 Second, minority students generally fare best in admissions
processes when their entire academic and personal records are examined, rather than when
64
65
66
Karabel II, at 34.
Id. at 37-38.
Tanya Schevitz, “New UC Plan to Raise Minority Enrollment,” San Francisco Chronicle, Sept.
22, 2000, at A1.
67
Id.
Diana Jean Schemo, “Head of U. of California Seeks to End SAT Use in Admissions,” New York
Times, Feb. 17, 2001, no page number available.
69
See Nicholas Lehman, The Big Test: The Secret History of the American Meritocracy (Farrar,
Straus & Giroux, New York, 1999); Nathan Glazer, “The End of Meritocracy,” New Republic, Sept. 27, 1999, no
page number available.
68
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administrators uncreatively just focus on isolated quantitative criteria, such as grade point
average and SAT score. Indeed, it usually is not even fair to compare the classes that a lowerincome minority student takes in high school with the classes taken by a higher-income white
student because students at private and better public schools often have significantly easier
access to “college prep” and “advanced placement” (AP) classes.70 Thus, to the extent that a
diminution in the importance given to the SAT test in admissions decisions would be
counterbalanced by more closely analyzing other aspects of students’ backgrounds, minority
students probably would benefit.71
36.
Moreover, particularly in light of a December, 2000 decision by the California Supreme
Court, an expansion in the criteria considered when making university admissions decisions
could not come at a more opportune time for minority California students. The Court, in HiVoltage Wire Works, Inc. v. City of San Jose, held that Proposition 209 bars California governmental
agencies from limiting recruitment or “outreach” efforts purely to women and minority
candidates.72 This decision was a blow to civil rights advocates because it was hoped that
aggressive outreach efforts aimed at qualified minority candidates partially could substitute for
more traditional affirmative action programs by, at minimum, increasing contact and
communication with minority candidates.73
37.
Thus, in the wake of a ruling that, at best, leaves the constitutionality of many such
outreach programs in serious question, the State of California again returns to a point at which
the urgent need for, and benefit of, affirmative action cannot seriously be debated. Today,
almost five years after the passage of Proposition 209, minority enrollment at state universities
remains seriously depressed, and no alternative to affirmative action has been offered to address
this problem. While the U.S. Report does recognize the way in which Proposition 209 and
Hopwood have impinged on the overall success of affirmative action in the U.S., the Report does
not convey the real urgency of the problem. Moreover, it is not at all clear that the new
Presidential administration in the U.S. will support the continue use of affirmative action even
as blandly as did the Clinton administration.
38.
Ultimately, the bottom line is that, even today, for example, about 95% of all senior
managers in U.S. Fortune 1000 industrial and Fortune 500 service companies are white men in a
society in which white men make up significantly less than 50% of the population.74 If the
California and the United States are serious about addressing this deep imbalance, affirmative
action is an important tool that must be used to expand educational opportunity, thereby, in
time, reducing minority social exclusion.
See David Hill, “Test Case,” Education Week, Mar. 1, 2000, at 34.
A related, even more recent proposal is to abandon the university’s two-tiered admission process,
in which some students are admitted during the first stage based purely on objective criteria, and replace it with a
more flexible process in which every applicant is evaluated separately. See Becky Bartindale, “UC Berkeley
Considers Abandoning Two-Tier Admission Process,” San Jose Mercury News, May 18, 2001, no page number
available.
72
24 Cal. 4th 537, 101 Cal. Rptr. 2d 652, 12 P.3d 1068 (2000).
73
Pamela Burdman, “UC System Has No Leeway to Consider Race in Admissions, Despite Recent
Court Ruling,” Black Issues in Higher Education, Jan. 4, 2001, at 22.
74
ACLU Report.
70
71
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F.
Recommendations
In one sense, any recommendations to be proffered on this issue are exceedingly simple
in theory, but difficult to execute in practice. Quite simply, either the State of California or the
U.S. federal government needs to move immediately to takes steps to reverse the effect of
Proposition 209, thus restoring affirmative action to use by California’s public universities. In so
doing, however, the following principles also should be upheld:

A well-tailored, comprehensive affirmative action program based on race and ethnicity
should be re-implemented, rather than an alternative arrangement. Although there is no
reason to ignore class when making admissions decisions, such consideration cannot
supplant the consideration of race and ethnicity, which are completely independent
factors in determining a student’s educational opportunities.

Abandonment of reliance on standardized tests should be encouraged, and college
admissions decisions increasingly should be based on a review of the complete portfolio
of an applicant, rather than just his or her GPA and test scores.

Relatedly, pre-college educational funding for lower-income minority students should be
expanded in an effort to ensure that students of different socio-economic backgrounds
have the same choices when it comes to taking the college prep and AP classes that they
need just to be able to apply to college. No student’s college eligibility should be
compromised due to circumstances beyond his or her own control before even getting to
apply to college.

Accompanying a restoration of traditional affirmative action programs should be a reinstitution and expansion of outreach programs in order to increase communication with
minority students and to maximize the diffusion of information regarding education
throughout the society.

Each of these changes should apply equally to undergraduate, graduate, and doctoral
admissions, as well as to professorial hiring by California’s public universities.
CONCLUSION
In violation of ICERD Articles 5 and 7, the practices and/or circumstances herein
described deprive California’s minority citizens of their right to be free of racial and ethnicbased discrimination in the fields of teaching, education, culture, and information. Similarly, the
federal government’s continued refusal to take special and concrete measures to amend, rescind,
or nullify California’s state policies against affirmative action represents a shirking by the U.S. of
its sovereign duty under ICERD Article 2 to takes steps when circumstances warrant, as clearly
they do here, to guarantee minority citizens the full and equal enjoyment of human rights and
fundamental freedoms.
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Appendix 2: U.S. Reservations, Understandings, Declarations
ICERD
Upon signature:
"The Constitution of the United States contains provisions for the protection of individual rights, such
as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize
legislation or other action by the United States of America incompatible with the provisions of the
Constitution of the United States of America."
Upon ratification:
"I. The Senate's advice and consent is subject to the following reservations:
(1) That the Constitution and laws of the United States contain extensive protections of
individual freedom of speech, expression and association. Accordingly, the United States does
not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict
those rights, through the adoption of legislation or any other measures, to the extent that they
are protected by the Constitution and laws of the United States.
(2) That the Constitution and laws of the United States establish extensive protections against
discrimination, reaching significant areas of non-governmental activity. Individual privacy and
freedom from governmental interference in private conduct, however, are also recognized as
among the fundamental values which shape our free and democratic society. The United States
understands that the identification of the rights protected under the Convention by reference in
article 1 to fields of `public life' reflects a similar distinction between spheres of public conduct
that are customarily the subject of governmental regulation, and spheres of private conduct that
are not. To the extent, however, that the Convention calls for a broader regulation of private
conduct, the United States does not accept any obligation under this Convention to enact
legislation or take other measures under paragraph (1) of article 2, subparagraphs (1) (c) and (d)
of article 2, article 3 and article 5 with respect to private conduct except as mandated by the
Constitution and laws of the United States.
(3) That with reference to article 22 of the Convention, before any dispute to which the United
States is a party may be submitted to the jurisdiction of the International Court of Justice under
this article, the specific consent of the United States is required in each case.
II. The Senate's advice and consent is subject to the following understanding, which shall apply to the
obligations of the United States under this Convention:
That the United States understands that this Convention shall be implemented by the Federal
Government to the extent that it exercises jurisdiction over the matters covered therein, and
otherwise by the state and local governments. To the extent that state and local governments
exercise jurisdiction over such matters, the Federal Government shall, as necessary, take
appropriate measures to ensure the fulfilment of this Convention.
III. The Senate's advice and consent is subject to the following declaration:
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That the United States declares that the provisions of the Convention are not self-executing."
ICCPR
I. The Senate's advice and consent is subject to the following reservations:
(1) That Article 20 does not authorize or require legislation or other action by the
United States that would restrict the right of free speech and association
protected by the Constitution and laws of the United States.
(2) That the United States reserves the right, subject to its Constitutional
constraints, to impose capital punishment on any person (other than a pregnant
woman) duly convicted under existing or future laws permitting the imposition
of capital punishment, including such punishment for crimes committed by
persons below eighteen years of age.
(3) That the United States considers itself bound by Article 7 to the extent that
"cruel, inhuman or degrading treatment or punishment" means the cruel and
unusual treatment or punishment prohibited by the Fifth, Eighth and/or
Fourteenth Amendments to the Constitution of the United States.
(4) That because U.S. law generally applies to an offender the penalty in force at
the time the offense was committed, the United States does not adhere to the
third clause of paragraph 1 of Article 15.
(5) That the policy and practice of the United States are generally in compliance
with and supportive of the Covenant's provisions regarding treatment of
juveniles in the criminal justice system. Nevertheless, the United States reserves
the right, in exceptional circumstances, to treat juveniles as adults,
notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article
14. The United States further reserves to these provisions with respect to
individuals who volunteer for military service prior to age 18.
II. The Senate's advice and consent is subject to the following understandings, which shall apply
to the obligations of the United States under this Covenant:
(1) That the Constitution and laws of the United States guarantee all persons
equal protection of the law and provide extensive protections against
discrimination. The United States understands distinctions based upon race,
color, sex, language, religion, political or other opinion, national or social origin,
property, birth or any other status - as those terms are used in Article 2,
paragraph 1 and Article 26 - to be permitted when such distinctions are, at
minimum, rationally related to a legitimate governmental objective. The United
States further understands the prohibition in paragraph 1 of Article 4 upon
discrimination, in time of public emergency, based "solely" on the status of race,
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color, sex, language, religion or social origin not to bar distinctions that may have
a disproportionate effect upon persons of a particular status.
(2) That the United States understands the right to compensation referred to in
Articles 9(5) and 14(6) to require the provision of effective and enforceable
mechanisms by which a victim of an unlawful arrest or detention or a miscarriage
of justice may seek and, where justified, obtain compensation from either the
responsible individual or the appropriate governmental entity. Entitlement to
compensation may be subject of the reasonable requirements of domestic law.
(3) That the United States understands the reference to "exceptional
circumstance" in paragraph 2(a) of Article 10 to permit the imprisonment of an
accused person with convicted persons where appropriate in light of an
individual's overall dangerousness, and to permit accused persons to waive their
right to segregation from convicted persons. The United States further
understands that paragraph 3 of Article 10 does not diminish the goals of
punishment, deterrence, and incapacitation as additional legitimate purposes for
a penitentiary system.
(4) That the United States understands that subparagraphs 3(b) and (d) of
Article 14 do not require the provision of a criminal defendant's counsel of choice
when the defendant is provided with court-appointed counsel on grounds of
indigence, when the defendant is financially able to retain alternative counsel, or
when imprisonment is not imposed. The United States further understands that
paragraph 3(e) does not prohibit a requirement that the defendant make a
showing that any witness whose attendance he seeks to compel is necessary for
his defense. The United States understands the prohibition upon double jeopardy
in paragraph 7 to apply only when the judgment of acquittal has been rendered by
a court of the same governmental unit, whether the Federal Government or a
constituent unit, as is seeking a new trial for the same cause.
(5) That the United States understands that this Covenant shall be implemented
by the Federal Government to the extent that it exercises legislative and judicial
jurisdiction over the matters covered therein, and otherwise by the state and local
governments; to the extent that state and local governments exercise jurisdiction
over such matters, the Federal Government shall take measures appropriate to
the Federal system to the end that the competent authorities of the state or local
governments may take appropriate measures for the fulfillment of the Covenant.
III. The Senate's advice and consent is subject to the following declarations:
(1) That the United States declares that the provisions of Articles 1 through 27 of
the Covenant are not self-executing.
(2) That it is the view of the United States that States Party to the Covenant
should wherever possible refrain from imposing any restrictions or limitations on
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the exercise of the rights recognized and protected by the Covenant, even when
such restrictions and limitations are permissible under the terms of the Covenant.
For the United States, Article 5, paragraph 2, which provides that fundamental
human rights existing in any State Party may not be diminished on the pretext
that the Covenant recognizes them to a lesser extent, has particular relevance to
Article 19, paragraph 3, which would permit certain restrictions on the freedom
of expression. The United States declares that it will continue to adhere to the
requirements and constraints of its Constitution in respect to all such
restrictions and limitations.
(3) That the United States declares that it accepts the competence of the Human
Rights Committee to receive and consider communications under Article 41 in
which a State Party claims that another State Party is not fulfilling its obligations
under the Covenant.
(4) That the United States declares that the right referred to in Article 47 may be
exercised only in accordance with international law.
IV. The Senate's advice and consent is subject to the following proviso, which shall not be
included in the instrument of ratification to be deposited by the President:
Nothing in this Covenant requires or authorizes legislation, or other action, by
the United Sates of America prohibited by the Constitution of the United States
as interpreted by the United States.
CAT
I. The Senate's advice and consent is subject to the following reservations:
(1) That the United States considers itself bound by the obligation under Article
16 to prevent "cruel, inhuman or degrading treatment or punishment," only
insofar as the term "cruel, inhuman or degrading treatment or punishment" means
the cruel, unusual and inhumane treatment or punishment prohibited by the
Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United
States.
(2) That pursuant to Article 30(2) the United States declares that it does not
consider itself bound by Article 30(1), but reserves the right specifically to agree
to follow this or any other procedure for arbitration in a particular case.
II. The Senate's advice and consent is subject to the following understandings, which shall apply
to the obligations of the United States under this Convention:
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(1)(a) That with reference to Article 1, the United States understands that, in
order to constitute torture, an act must be specifically intended to inflict severe
physical or mental pain or suffering and that mental pain or suffering refers to
prolonged mental harm caused by or resulting from: (1) the intentional infliction
or threatened infliction of severe physical pain or suffering; (2) the administration
or application, or threatened administration or application, of mind altering
substances or other procedures calculated to disrupt profoundly the senses or the
personality; (3) the threat of imminent death; or (4) the threat that another
person will imminently be subjected to death, severe physical pain or suffering, or
the administration or application of mind altering substances or other procedures
calculated to disrupt profoundly the senses or personality.
(b) That the United States understands that the definition of torture in Article 1
is intended to apply only to acts directed against persons in the offender's
custody or physical control.
(c) That with reference to Article 1 of the Convention, the United States
understands that "sanctions" includes judicially imposed sanctions and other
enforcement actions authorized by United States law or by judicial interpretation
of such law. Nonetheless, the United States understands that a State Party could
not through its domestic sanctions defeat the object and purpose of the
Convention to prohibit torture.
(d) That with reference to Article 1 of the Convention, the United States
understands that the term "acquiescence" requires that the public official, prior to
the activity constituting torture, have awareness of such activity and thereafter
breach his legal responsibility to intervene to prevent such activity.
(e) That with reference to Article 1 of the Convention, the United States
understands that noncompliance with applicable legal procedural standards does
not per se constitute torture.
(2) That the United States understands the phrase, "where there are substantial
grounds for believing that he would be in danger of being subjected to torture," as
used in Article 3 of the Convention, to mean "if it is more likely than not that he
would be tortured."
(3) That it is the understanding of the United States that Article 14 requires a
State Party to provide a private right of action for damages only for acts of torture
committed in territory under the jurisdiction of that State Party.
(4) That the United States understands that international law does not prohibit
the death penalty, and does not consider this Convention to restrict or prohibit
the United States from applying the death penalty consistent with the Fifth,
Eighth and/or Fourteenth Amendments to the Constitution of the United States,
including any constitutional period of confinement prior to the imposition of the
death penalty.
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(5) That the United States understands that this Convention shall be
implemented by the United States Government to the extent that it exercises
legislative and judicial jurisdiction over the matters covered by the Convention
and otherwise by the state and local governments. Accordingly, in implementing
Articles 10-14 and 16, the United States Government shall take measures
appropriate to the Federal system to the end that the competent authorities of
the constituent units of the United States of America may take appropriate
measures for the fulfillment of the Convention.
III. The Senate's advice and consent is subject to the following declarations:
(1) That the United States declares that the provisions of Articles 1 through 16 of
the Convention are not self-executing.
(2) That the United States declares, pursuant to Article 21, paragraph 1, of the
Convention, that it recognizes the competence of the Committee against Torture
to receive and consider communications to the effect that a State Party claims
that another State Party is not fulfilling its obligations under the Convention. It is
the understanding of the United States that, pursuant to the above mentioned
article, such communications shall be accepted and processed only if they come
from a State Party which has made a similar declaration.
IV. The Senate's advice and consent is subject to the following proviso, which shall not be
included in the instrument of ratification to be deposited by the President:
The President of the United States shall not deposit the instrument of ratification
until such time as he has notified all present and prospective ratifying parties to
this Convention that nothing in this Convention requires or authorizes
legislation, or other action, by the United States of America prohibited by the
Constitution of the United States as interpreted by the United States.
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APPENDIX 3: SAMPLE PRESS RELEASE
MEDIA ADVISORY
For Immediate Release:
September 22, 2000
Contact:
Merce Momeni 202/422-1016
Lisa Jacobs 202/486-5280
U.S. Report Fails to Propose Meaningful Solutions to Criminal Justice Crisis
Yesterday, the U.S. released its first report to the U.N. Committee on the Elimination of Racial
Discrimination. We are pleased that the U.S. has released its report, and we acknowledge the
progress made on racial discrimination issues by the Clinton Administration. Nevertheless, we
contend that the U.S. vastly understates the civil rights crisis in its criminal justice system. In
anticipation of the release of the U.S. report, more than 45 prominent individuals, civil rights
and human rights leaders called upon the U.N. committee, which will review the U.S. report, to
pay particular attention to the racial discrimination that is endemic to the U.S. criminal justice
system, including that system’s impact on women and youth of color. The “Call to Action,”
highlighted numerous concerns including racial disparities in sentencing, and in the application
of the death penalty. Having now reviewed the U.S. report, we note that the U.S. report fails to
set forth a plan for redressing these unjustified and pervasive racial disparities.
In a forthcoming document, we will critique the U.S. report as a whole, highlighting areas in
which the U.S. has achieved compliance with the Convention and identifying other areas in
which we believe U.S. compliance falls short.
Signatories of the “Call to Action,” include Julian Bond, Chair of the NAACP, Jesse Jackson, Sr.,
actor Spike Lee, Wade Henderson, Executive Director of the Leadership Conference on Civil
Righs, Ira Glasser of the ACLU, Hala Maksoud of the American-Arab Anti-Discrimination
Committee, Karen Narasaki of the National Asian Pacific American Legal Consortium, Antonia
Hernandez of the Mexican American Legal Defense Fund, Judith Lichtman of the National
Partnership for Women and Families, JoAnn Chase of the National Congress of American
Indians, James F. Fitzpatrick of the International Human Rights Law Group, Kerry Kennedy
Cuomo of the Robert F. Kennedy Memorial Center for Human Rights, Dr. Bob Edgar of the
National Council of Churches/USA and noted historian and member of the President’s Initiative
on Race, Dr. John Hope Franklin.
The “Call to Action” was presented to the U.N. by Mary Frances Berry, Geraldine Segal
Professor of History, University of Pennsylvania, and Chair of the U.S. Civil Rights Commission;
Julian Bond, Chair of the NAACP; and Wade Henderson, Executive Director of the Leadership
Conference on Civil Rights.
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