By Irene Rizzolatti, Rammya Rajan, and Shayla Sullivan
The Committee on the Elimination of Racial Discrimination (“CERD”) convened its 107th Session to review the policies and practices of the United States of America (“U.S.”) with civil society representatives, Country Rapporteurs, and representatives of the U.S government in Geneva, Switzerland from August 8-11.
Importance of CERD
CERD holds governments accountable for their international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”). It does so by evaluating state practice and regular reporting, examining State Party reports and issuing recommendations to the State Party in order to fulfill their obligations under ICERD.
The U.S. ratified ICERD in 1994, however, the State submitted several reservations, understandings, and declarations upon ratification. These conditions limit the scope of application and enforceability of the ICERD, namely that the provisions of the Convention are not self-executing. As such, the Federal Government would need to take additional measures to complement and comply with the spirit of the ICERD.
The CERD Process
To hold States like the U.S. responsible under the treaty, members of civil society submit detailed reports to CERD regarding the State’s lack of protection against racial discrimination. In response, the State prepares a report to CERD describing the fulfillment of international obligations pursuant to the treaty. Members of CERD, including the Country Rapporteur and various UN agencies, then consider the State’s report and construct a list of issues with civil society’s concerns to return to the State’s delegation. Finally, CERD provides concluding observations and recommendations that the State must implement. This process is designed to encourage meaningful dialogue between the U.S. as the State Party, civil society, and the Committee.
Themes raised by Civil Society in 107th Session
To facilitate cooperative dialogue, the CERD evaluates each State’s compliance with the Convention by reviewing shadow reports, the Country Rapporteur report, and the State’s own compliance report. Upon review, the CERD formulates a list of themes that should be addressed during the State’s response before the committee.
The CERD’s most recent list of themes included: racial profiling; discriminatory practices in education; the discrimination of immigrants and non-citizens; gun violence and the use of excessive force by law enforcement; voting rights; women’s and reproductive rights; and environmental racism and pollution.
Events of the 107th Session
On August 8, the 107th Session of CERD commenced at the United Nations Office at Geneva. Throughout August 11 and 12, the U.S. Delegation presented its efforts to fulfill treaty obligations. Following these remarks, the Country Rapporteur, Ms. Pansy Tlakula, and other members of CERD questioned U.S.efforts to tackle racial discrimination based on the list of themes presented.
The questioning throughout the meeting on August 11 focused on discriminatory practices affecting Afro-Descendants. Ms. Li Yanduan, CERD member, addressed one of the most prominent issues facing black and brown communities – police brutality. She questioned why proposed legislation to end racial profiling failed in the Senate when law enforcement continue to kill people of color at an alarming rate. The Department of Homeland Security representative responded that a holistic review of law enforcement techniques were being conducted and de-escalation techniques taught to law enforcement officials. Johnathan Smith of the Department of Justice added that the Biden Administration strongly supports the George Floyd Act, to establish guidelines for the prevention of racial discrimination by law enforcement at all levels. Unsatisfied by these measures, Mr. Gün Kut, CERD expert, asked the U.S., “if you act in the spirit of the Convention, why don’t you ratify [ICERD without reservations]?” Because although the U.S. claims to act in the spirit of cooperation with ICERD in its country reports, its domestic policies do not support that claim.
On the morning of August 12, CERD addressed the theme of Indigenous self-governance. Mr. Meherdad Payandeh, expert on the CERD, questioned the U.S. on the enduring effects of colonialism on Indigenous communities. He voiced his concern on the failure to consult Indigenous Peoples prior to the planning and licensing of their lands. Mr. Payandeh noted multiple cases where Indigenous communities were not granted the right of free, prior informed consent and requested the U.S. delegation to implement measures. The Department of Interior representative claimed that the State encourages self-determination in federally recognized tribes while acknowledging the clear mistrust between Indigenous communities and the government. In spite of this, she offered no information on measures taken. A member of the U.S. delegation indicated that the White House established guidelines on how to engage in free, prior informed consent with indigenous communities.
CERD’s Concluding Observations
On August 30, CERD published their concluding observations with detailed recommendations for each theme addressed at the 107th Session for the U.S. The primary recommendation is that the U.S. take necessary measures to apply CERD provisions at federal, state, and local levels through legislative incorporation to combat discriminatory actions. CERD also provided the U.S. with specific recommendations regarding measures to combat police brutality. The Committee recommends that when law enforcement utilizes lethal force, the State reports and collects such data. CERD also recommends the U.S. reevaluate legislation for conformity to and alignment with international law and standards.
The Committee also recommends measures the U.S. should implement to improve relations with Indigenous Peoples. CERD urges the U.S. to eliminate undue obstacles that impede the recognition of Indigenous Peoples. Further, CERD encourages the U.S. to guarantee the use of free, prior informed consent in accordance with the UN Declaration on the Rights of Indigenous Peoples.
The U.S. has an interest in complying with the CERD concluding observations as it serves on the UN Human Rights Council. The U.S. delegation repeatedly stated that the Biden administration is seeking to make the U.S. an example for the advancement of human rights to hold other governments accountable for human rights abuses. However, members of civil society continue to raise concerns on the effective compliance of the U.S.and the continuous use of discriminatory practices. Civil society’s main concern is the application of CERD’s recommendations in the U.S. Over five years ago, CERD provided similar recommendations, yet racial discrimination and its consequences have not diminished, but have become more severe.