Friday, May 14, 2010

Raising Arizona

If the polls are to be believed, a significant majority of Americans support Arizona's harsh new immigration law, signed by Gov. Brewer three weeks ago today. The significant minority of Americans opposed to the law has pushed back fairly powerfully, including through criticism from governors of other border states (California, New Mexico, and Texas) and boycotts by several cities, including most recently, Los Angeles. Perhaps even more striking has been the strong opposition to the law from outside our borders, from Mexican President Felipe Calderon (who stated that the law infringes basic human rights) to the Mexico-based World Boxing Council (which called the law shameful, inhuman, and discriminatory) to Secretary General Jose Miguel Insulza of the Organization of American States (who called the law discriminatory) to the Union of South American Nations (which expressed concern over the law's racist consequences that undermine respect for human rights), much of it leveraging the language of human rights.
The most comprehensive international human rights critique of the law, however, was offered by a group of six independent United Nations experts -- an unusually large team of human rights superheroes -- on Tuesday. Their statement, which also addresses the bill banning ethnic studies courses in Arizona schools that Brewer signed the into law the following day, raises interesting questions about the role of international human rights law in protecting immigrants' rights. Most obviously, if laws that violate human rights are consistent with a country's social norms, as the poll results suggest in the case of Arizona's law, will international pressure help to shift those social norms or will it simply entrench anti-immigrant attitudes and opposition to "foreign meddling" in domestic affairs?
In her own rather confused way, Governor Brewer presents another interesting question about the application of international human rights law in federal systems of government. Her response to the UN experts statement places the responsibility for enforcement of international human rights law squarely on the federal government, arguing that "[i]f the Arizona law violates the international standards, then so does the federal law upon which it is based." Though perhaps not the most compelling argument, it does give rise to questions about whether the federal government should be responsible for challenging state laws that violate international human rights law. While sub-state actors may in some cases be more effective enforcers of international norms, central governments still have an important role to play in keeping rogue sub-state actors in line.
Finally, the statement takes a step towards enforcement of positive rights, a move that highlights the predominance of negative rights in the human rights discourse. At first read, I questioned the existence of binding legal authority to support the claim that "[s]tates are obligated to not only eradicate racial discrimination, but also to promote a social and political environment conducive to respect for ethnic and cultural diversity.” But there it is, clear as day, in the text of Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination:
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 and racial or ethnical groups. . .
A good reminder that the "spirit" of human rights treaties is sometimes spelled out right there in the text, and that we shouldn't allow the enforcement of negative rights, though unquestionably important, to overshadow legally binding claims to positive rights. (For those interested in further readings on Article 7, here's an excellent short piece by IntLawGrrl Stephanie Farrior.)


Stephanie Farrior said...

So glad you noted the important positive obligations states are to take under Article 7 of ICERD to eliminate the prejudices that lead to racial discrimination. Here’s an overview of the drafting history of this provision and of the CERD Committee's observations on measures that states should take to implement it.

Jaya Ramji-Nogales said...

Thanks, Stephanie -- it's a great article!