Interested in how global oversight bodies shape the substance of human rights imaginaries?
By Joshua Clark.
A coalition of international NGOs recently began webcasting meetings of UN human rights treaty bodies in an initiative that aims to broaden public access to, and engagement with, these bodies’ work. For me, this also offers the opportunity to revisit one of my fieldsites—the sessions of the UN Committee on the Elimination of Racial Discrimination (CERD) in Geneva—from home. On August 13–14, 2014, I tuned in to see the CERD call on United States government representatives to account for issues including voter disenfranchisement, racial and religious profiling in law enforcement, detention of migrant families, school re-segregation, abusive regulations governing guest workers, and the recent deplorable murders of unarmed African-American youth.
The committee raised these issues as part of its examination of the US’s report on compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the oldest of the core human rights treaties. All nation-states that ratify human rights treaties are required to submit such reports every few years. The international legal experts who comprise the CERD evaluate the reports, alongside alternative, non-governmental sources, in interactive meetings with government delegations. These meetings are called “constructive dialogues,” reflecting their goal to be promotional and regulatory rather than contentious and adjudicatory. Below I discuss key points from the 2014 US–CERD exchange that highlight distinctions between the international human-rights and US frameworks for addressing racial discrimination. First, however, I contextualize these within the US’s broader approach to human rights treaties.
The US does not often come before treaty bodies like the CERD because it has not ratified most human rights treaties in the UN system. Recently I mentioned this while explaining my research to a psychology professor, who responded that this must be because the US government takes human rights treaties with the utmost seriousness. His understanding, he continued, was that other nation-states make human rights commitments with no intention of fulfilling them, whereas treaties ratified by the US immediately become the law of the land.
These perceptions are common in the US, but largely mistaken. While in principle, international treaties become equivalent to federal statutes upon ratification, the US Congress consistently exempts human rights treaties from assuming such status. It does so through international legal mechanisms known as reservations and declarations—unilateral riders attached to ratifications to exclude or modify treaty obligations. For each of the three human rights treaties it has joined (including ICERD), the US declared all provisions thereof non-self-executing. This means that the treaties neither alter domestic law nor constitute an “independently enforceable private cause of action in US courts.” Furthermore, Congress has approved ratifying treaties only when convinced that their requirements do not challenge existing domestic legal frameworks. Senate Foreign Relations Committee records demonstrate that ICERD ratification, for example, hinged on a two-part argument: it would strengthen US standing in international human rights arenas without necessitating legal or policy reforms.
Still, we cannot speak of a uniformly antagonistic US position towards human rights treaties. Government engagement with the treaty system varies with changing domestic pressures and, in general, Democratic administrations participate more actively. Given this, and the country’s current leadership by its first African-American president, much anticipation surrounded this year’s US–CERD exchange.
The Obama administration maintained the US’s reservations, declarations and narrow interpretation of the Convention, but CERD members nonetheless acknowledged positive changes in the report’s tone and the government delegation’s approach to dialogue. The committee’s most persistent concern was with the country’s endemic racial/ethnic disparities—in criminal justice, education, health, employment, poverty and elsewhere. This focus highlights a major discrepancy between the CERD’s human-rights versus the US’s civil-rights conception of discrimination. In the US, disparities that emerge without clear discriminatory intent can only face legal challenge under very limited circumstances. Where legal remedy is available, it requires demonstrating that a specific policy or practice caused the disparate outcome in question, precluding inequalities of more diffuse provenance from being addressed as discrimination. The CERD, on the other hand, treats all disparate outcomes, including cumulative socio-economic inequalities, as indicative of discrimination, often called structural discrimination. From this standpoint, the existence of marked disparities alone justifies implementing special measures, or affirmative actions. CERD members thus expressed alarm at affirmative action’s vulnerability to political attack in the US, arguing that rampant inequality makes such measures obligatory under the Convention.
The US report took an important step towards conceptual consistency with the CERD in another area—that of indigenous rights. While the Bush administration’s previous report to the CERD strategically avoided the term indigenous, the current report embraces this international legal category. It affirms that indigenous peoples possess distinct rights grounded not only in government agreements with federally recognized tribes, but also in international norms on indigenous individual and collective rights. This reflects the Obama Administration’s 2010 decision to change the US position on the UN Declaration on the Rights of Indigenous Peoples to one of support, making it the final country in the world to do so.
Finally, CERD members implored the United States to adopt institutional mechanisms for the sustained, systematic implementation of the Convention. Members urged the government to create an independent national human rights institution (NHRI) to coordinate and monitor efforts across all its agencies and jurisdictions. NHRIs, together with official national strategies or action plans, have become prevalent treaty-implementation tools globally, but have yet to reach the United States. The CERD noted that this leaves many public officials unfamiliar with, or unaware of, treaty obligations for which they bear responsibilities.
As I alluded above, the CERD’s conclusions are not enforceable judgments. Despite its discourse of obligation—and the Convention’s legally binding character in international law—the Committee can only issue recommendations. The effects of these recommendations depend on their persuasiveness and reverberations in dialogues beyond Geneva—in Washington, but also in city councils, Indian Country, Ferguson and elsewhere. The webcasting initiative aims to multiply those reverberations, increasing the impact of the committee’s work by making it more accessible and transparent.
Joshua Clark is a doctoral candidate in the department of anthropology at University of California–Irvine. His dissertation investigates the implementation of international human rights norms against racial discrimination based on fieldwork in Central America and at the CERD.