Civil Rights and Human
Rights in the Obama Era
The Convention for the Elimination of Racial Discrimination (CERD)
June 24, 2010
The U.S. Social Forum

I.
What is the CERD?
II.
CERD in Action – How CERD
Works.
III.
Why is CERD Important to social and racial justice advocacy?

(I)nternational
(C)onvention on the
(E)limination of All Forms of
(R)acial
(D)Iscrimination

 Multilateral treaty negotiated through the
UN in early 1960s
 Adopted & opened for signature and ratification by UN General Assembly
December, 1965
 Entered into force January, 1969
 US signed in1966, and ratified in 1994

What is
CERD?
• Seven main articles in CERD
• US reserved to
Article 4 and 7 on
1 st Amendment
Grounds
• Article 8-16
Establishes CERD
Committee and
Reporting Process
• US says treaty is not ‘self-executing’
Article 1
Article 2
Article 3
Article 4*
Article 5
Article 6
Article 7*
Defines Racial
Discrimination
Prohibits Discrimination and Requires
Affirmative Measures to
Address Disc.
Racial
Segregation/Apartheid
Condemned
Hate Propaganda
Prohibited
Enumeration of
Guaranteed Rights, including health care and housing
Effective legal protection and
Remedies Provided
Promote Human Rights
Education and Combat
Prejudice

 “The term ‘racial discrimination’ shall mean any distinction , exclusion, restriction or preference based on race… which has the purpose or effect of nullifying or impairing…the enjoyment of human rights…”
 CERD is unequivocal: Effects matter .
 Racial discrimination includes facially neutral policies and practices that have an unintended negative effect on a racial group.
 Intent to discriminate is not necessary.

 Creates Affirmative Obligation requiring
Govts. to pro-actively identify and remedy racial discrimination in law and policies
 Requires “Special Measures (Art. 2, ¶ 2)
 Requires data collection and evaluation by race to measure discriminatory impact
 Requires countries to report to the CERD
Committee on their progress

How CERD affects the USA and
How NGOs use CERD

1) State Party files Periodic Report
2) CERD Committee accepts reports from activists and NGOs (Shadow Reports)
3) CERD Committee questions state representative
4) CERD Committee issues “Concluding
Observations”

Periodic Reporting Process:
Article 9
1) State parties submit reports on CERD implementation one year after entering
2) State Parties thereafter submit reports every two years and as requested
The United States has submitted an Initial
Report (2000) and a Periodic Report
(2007) as well as a follow up Report
(2009).

 Submitted by the Bush Administration
 Outlined policies and practices that are in compliance with the CERD.
 Did not address how the country falls short and reiterated our reservations to hate speech and hate group membership.

NGOs: CERD Shadow
Reporting
 A shadow report is information submitted by
NGOs to the treaty monitoring bodies that addresses omissions, deficiencies, or inaccuracies in the official government reports.
 This is one way for NGOs to get the attention of the United States.
 The USA is obligated to answer questions based in part on the information in Shadow
Reports.

Shadow Reports to the 2007
Periodic Report
 In 2008, Kirwan & over 200 other groups submitted a shadow report to the UN, detailing where the US has fallen behind on commitment to CERD
 Kirwan was part of the Structural Racism
Report, first report in 500 page total shadow report

 Kirwan and other groups attacked:
 The intent doctrine of the 14 th Amendment
 US failure to review and correct policies that perpetuate racialized disparities
 US failure to enhance government coordination with states, using the Katrina fallout as an example.
• The United States was questioned on its
Katrina Response.

CERD Committee Response:
Concerned About
 Residential Segregation
 Criminal Justice
 Police Brutality
 Felon Disenfranchisement
 Katrina Displacement

CERD committee requested that the US report back on
 racial profiling at the federal and state levels
 life sentence without parole against persons under the age of eighteen
 return of persons displaced by Hurricane Katrina
 Public awareness and education programs on the
Convention and its provisions.

 Bush Administration response shortly before Obama took office.
 Reiterated the information in the 2007
Report and defended its record of civil rights and protections as all in accordance with US Law.

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

 No “teeth” to CERD. Can’t sue under it, can’t enforce it?
 Basically, CERD can be used as a way for NGOs to put the government and the world on notice of its human rights and civil rights abuses. While there was no movement in 2007, a more responsive administration might move to action.

 In 2009, Obama Administration decided not to go to the CERD Durban conference.
 There was some movement by the
Justice Department to have CERD meetings in early March 2010, but the meetings have been postponed.

US HAS Ratified
International Covenant on Civil and
Political Rights (ICCPR)
US has signed, but NOT Ratified
International Covenant on Economic ,
Social , and Cultural Rights (CESCR)
ICERD
Convention against Torture (CAT)
Convention on the Elimination of all forms of Discrimination Against
Women (CEDAW)
Convention on the Rights of the Child
(CRC)
Convention on the Protection of the
Rights of all Migrant Workers and
Members of their Families
Convention on the Rights of Persons with Disabilities (CRPD)
American Convention on Human
Rights

 Exposure and Shaming
 Framing Issue as Human Rights Issue
 Use shadow reporting to elevate your issues
 Using shadow reporting to implement cerd at local level, with city and state govt.
 Legal Advocacy Given Limited Domestic
Remedies
 Higher Standards than Domestic Law
 Periodic Reporting/Accountability

 Using Shadow Reports as an Organizing
Strategy
 Select an issue
 Collect information, organize meetings
 Collaborate with other organizations
 Draft a shadow report
 Testify at Congressional Hearings
 Meet with/Submit questions to CERD
Rapporteur

 Sometimes issues feel like ‘old news’ even when important
 Framed as ‘human rights’ issue, CERD allows you to create public record of legal violation
 Draw media attention

 Supreme Court often cites International
Law:
 Justice Ginsberg, concurrence in Grutter v.
Bollinger , citing CERD twice
 Justice Kennedy in Roper v. Simmons, citing
ICCPR, American Convention on Human
Rights, and Convention on the Rights of the
Child
 Cite in Briefs and as Amici

 Pennsylvania state representatives held hearings on CERD
 Massachusetts Human Rights Bill would implement CERD, CEDAW and CRC
 Cook County resolution recognizing
CERD and CESCR right to housing
 California adopted CERD definition into state statutory law

 7 th through 9 th due November 20 th , 2011.
 Universal Periodic Review:
 New UN mechanism that reviews all countries based on ratified treaties and UN
Charter/Declaration of HR
 December, 2010

Questions or Comments?
For Further Information, Visit Us Online: www.KirwanInstitute.org
29