U.S. CERD Review Roundup: Federalism and Human Rights Treaty Implementation
Guest blogger Erin Smith of Columbia Law School’s Human Rights Institute posts today from on the scene in Geneva, Switzerland, at the conclusion of the review of the U.S. compliance with the Race Convention. Writes Erin:
As this blog has noted, this week the United Nations Committee on the Elimination of Racial Discrimination reviewed U.S. compliance with human rights obligations under the Race Convention (CERD). Following the review, the Committee will release Concluding Observations, discussing areas of concern with U.S. implementation of the treaty and making recommendations to the U.S. government.
Among the issues on the agenda were housing discrimination, employment inequality for minority women, treatmentof migrant workers, segregation in education, racially disparate impacts in criminal justice, disparities in health access and outcomes, and profiling on the basis of race and national origin. But besides race, what do all of these issues have in common? They all fall under the jurisdiction of state and local governments. Therefore, a key overarching topic on the agenda has been how to ensure compliance with the Convention at the state and local level.
Earlier this summer, Columbia Law School’s Human Rights Institute and the International Association of Official Human Rights Agencies (IAOHRA) jointly submitted a shadow report to the Committee to inform the review. The report focuses on the U.S. federal government’s obligations to ensure that state and local governments have the capacity to fulfill human rights in local communities. The report describes how the current lack of federal support has resulted in significant gaps in human rights protections in a number of areas under the jurisdiction of state and local governments. Building on prior advocacy, the report recommends ways that the federal government can equip state and local actors to promote and protect human rights in a comprehensive and coordinated manner, accounting for the U.S. federal structure, which limits the federal government’s ability to compel state and local action.
While the report emphasizes the lack of federal guidance in the human rights arena, it highlights that a number of states and localities have adopted innovative initiatives to eliminate discrimination, in line with CERD. However, while encouraging, these efforts are currently ad hoc, patchwork and vulnerable to elimination—and will remain so without federal action.
This review itself was a signal that the federal government is interested in increased state and local engagement. The U.S. delegation included Mayor Bell from Birmingham, Alabama, and Attorney General McDaniel from Arkansas. But broad dissemination of what has transpired in Geneva is critical if reviews will inform local governance.
The Committee members, keen on learning about the facts on the ground in the U.S., held consultations with U.S. civil society on Tuesday and Wednesday morning. At both, Mr. Robin Toma, Executive Director of the Los Angeles County Human Relations Commission, and Vice President of IAOHRA, spoke with specificity on the value of strengthening state and local human rights implementation. Toma remarked that most state and local officials don’t even know what CERD is, yet CERD requires the U.S. to not only educate state and local governments about their human rights obligations but also to equip them to monitor and implement those obligations. Two Committee members pursued the topic further, delving into a discussion on what the federal government has done and should do to improve intergovernmental coordination around the CERD.
Yesterday afternoon and this morning, the Committee held its official U.S. review. During the two three-hour sessions, multiple Committee members—including Mr. Marc Bossuyt of Belgium, Mr. Ion Diaconu of Romania, Ms. Fatimata-Binta Victoire Dah of Burkina Faso, Ms. Afiwa-Kindena Hohouto of Togo, and the Committee’s U.S. Rapporteur, Mr. Noureddine Amir of Algeria—continued to press on the issue of state and local implementation. The Committee:
- praised the government for including members of state and local government in its delegation;
- noted the importance of implementing the Convention through all levels of government and asked the U.S. to improve coordination to that end;
- asked the federal government to educate state and local officials about the treaty and their obligations thereunder, including by sending the Committee’s Concluding Observations to state and local governments;
- urged the U.S. to establish a permanent institution tasked with implementing and coordinating treaty obligations throughout the country, such as a National Human Rights Institution; and
- encouraged the U.S. to provide funding to state and local governments to monitor and implement their obligations under the Convention.
Meanwhile, the U.S. delegation highlighted coordination efforts and existing state and local initiatives to combat racial discrimination. Deputy Assistant Secretary Scott Busby of the Bureau of Democracy, Human Rights, and Labor in the Department of State noted, among other subjects, federal challenges to discriminatory voting laws in California and Texas under the Voting Rights Act, efforts to educate state and local entities about treaty obligations and treaty reviews, and the State Department’s intention to post Concluding Observations to its website when they become available. Mayor Bell discussed federally-supported programs in Birmingham to eliminate barriers to healthcare for minorities and to help young men and women coming out of prison to find work and reintegrate into society. And Attorney General McDaniel spoke about efforts his office has taken to combat racial discrimination in Arkansas, including by helping to protect minority borrowers in the wake of the foreclosure crisis through the enforcement of laws dealing with deceptive consumer practices.
The Committee’s Concluding Observations are expected within the next month.