'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The Court was explicit in explaining what is required to ensure indigenous and tribal peoples’ right to consultation. The Court stated that the obligation to consult is the responsibility of the state; therefore, planning and conducting the consultation process cannot be delegated to a private company or a third party. The Court also considered that the consultation process should entail a “genuine dialogue as part of a participatory process in order to reach an agreement,” and it should be conceived as “a true instrument of participation,” done in “good faith,” with “mutual trust” and with the goal of reaching a consensus.'

–  Lisl Brunner, a human rights specialist with the Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, and Karla Quintana, a human rights specialist with the Commission's Litigation Group, in an ASIL Insight entitled "The Duty to Consult in the Inter-American System: Legal Standards after Sarayaku." The co-authors set forth the reasoning in Caso del Pueblo Indígena Kichwa de Sarayaku v. Ecuador (June 27, 2012), in which the Inter-American Court of Human Rights held that the respondent state was liable for failing to discharge its duty to consult with the indigenous Sarayaku people in connection with an oil project, undertaken in 1996, that destroyed part of a rainforest in the people's traditional lands.
As Brunner (right) and Quintana (left) explain, although the decision arose within the inter-American human rights system, it is likely to have impact on actors brought before other regimes as well; for example, those that consider: the International Labour Organization Convention No. 169, titled the Indigenous and Tribal Peoples Convention; the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the African Charter on Human and Peoples' Rights.

International context for affirmative action argument

'The University of Texas’ race-conscious admissions policy comports with international human rights standards guaranteeing the full freedom from racial discrimination for all and furthers the United States’ compliance with its international treaty commitments. Furthermore, the University of Texas’ program comports with the law of other jurisdictions upholding and endorsing race-conscious measures in admissions in higher education. This international context should inform the Court’s analysis of the constitutionality of the University of Texas’s consideration of race in its admissions process.'

– So concludes IntLawGrrl Connie de la Vega (left), University of San Francisco Law Professor, in her capacity as counsel of record for the Brief of Amici Curiae Human Rights Advocates, et al., in Support of Respondents in Fisher v.  University of Texas. In that case, to be argued before the U.S. Supreme Court tomorrow morning, petitioner Abigail Noel Fisher, a Texan denied admission to the university, seeks to overturn a 2011 decision in which the U.S. Court of Appeals for the 5th Circuit, relying on the supreme Court's judgment in Grutter v. Bollinger (2003), upheld the university's race-conscious admissions program. (A preview of the argument is here.)
Connie's brief argues in favor of the program by showing it to be in accord with:
► 2 treaties to which the United States is a party, the 1966 International Covenant on Civil and Political Rights and the 1965 Convention on the Elimination of All Forms of Racial Discrimination;
► The views of  the U.N. Working Group of Experts on People of African Descent, a panel of independent human rights experts
► Rulings in the European Court of Justice; and
► National rulings and laws in Australia, Brazil, Canada, India, New Zealand, and South Africa.
A look at the titles of briefs filed in Fisher suggests that hers is one of the few to invoke international context – scarcely a surprise given that the Court's been rather reticent on this topic in the last few years. Kudos to Connie and her colleagues for adding this perspective to the Court's deliberations.

Why every human rights advocate should know a little international law

(Thank you to IntLawGrrls, and in particular to Beth Van Schaack, for the opportunity to contribute this guest post, Part 1 of a 2-part series on effective human rights advocacy; Part 2 is here)

International law is a powerful tool for the protection of human rights. The law and the bodies that enforce it can provide real redress for victims of human rights abuses, build bridges between communities facing similar harms, bolster arguments for accountability, and mandate reforms. Though the regional and thematic treaty-based nature of human rights mechanisms may lead to some fragmentation or inconsistencies in the development of substantive rights, individuals and nongovernmental organizations’ thoughtful engagement with such mechanisms can yield profound results; for example:
► Vindication for the individual, as in this judgment from the European Court of Human Rights;
► A new beginning for the individual's community, as in this case from the Inter-American Court of Human Rights; and
► Landmark policy change for the individual's country, as in this matter before the Inter-American Commission on Human Rights.
In January of this year, I founded the International Justice Resource Center, a nongovernmental organization aimed at furthering such achievements -- in particular, helping human rights advocates know more about, and thus make better use of, international law.
IJRC is a global, user-oriented platform aimed at connecting grassroots human rights advocates with an underutilized, but powerful set of tools: international law and supranational human rights mechanisms. IJRC administers an online hub, tailored trainings and advocacy support, with the goal of democratizing understanding of and access to the range of international human rights norms and the bodies charged with their promotion and protection.
Based in Boston, Massachusetts, IJRC already has trained advocates working in various regions of the world, and responded to requests for advice from California to Kyrgyzstan. IJRC is also building an online platform where visitors can seek assistance, engage with one another, and access practical, user-friendly resources, such as instructional videos and manuals. No matter the issue they are facing or the country in which they work, advocates will be able to gain actionable knowledge of the standards and bodies relevant to their litigation, reporting, advocacy, or public education campaigns.
This past Wednesday, IJRC hosted Boston Human Rights Night, which brought together members of the academic, social justice, and legal communities to learn about one another’s work and explore the opportunities that international law presents for enhanced human rights promotion. The evening was also the culminating celebration of Campaign 501, which wraps up tomorrow.
At the Human Rights Night, an expert panel provided concrete examples from their work in the United States and abroad, allowing participants to take away a fuller understanding of the relevance of international law to social justice advocacy in the United States.
As panelists detailed, persons seeking improvement of – or accountability for – human rights conditions in the United States can:
► Prepare shadow reports for the expert bodies monitoring compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment;
► Engage with the Human Rights Council thematic special procedures’ factfinding and reporting activities or seek the body's intervention on specific human rights violations;
► Submit information for consideration by the U.N. Human Rights Council as part of its Universal Periodic Review process;
► Make specific allegations of human rights violations through the Human Rights Council complaints procedure; and
► Submit individual complaints to the Inter-American Commission on Human Rights, and furthermore, participate in that body’s thematic hearings and rapporteurs’ activities.
In addition, many international bodies are empowered to intervene and urge or order state action where the life or security of a person or the object of the litigation is at immediate risk of irreparable harm. These means of engagement do not include still another avenue: advocacy around and engagement with the work of the political organs of intergovernmental organizations.
Unfotunately, as I will discuss in Part 2, the post that will appear tomorrow, Human Rights Day 2011, there remains a gap between the availability and use of such international law resources.

Human Rights Implications of Arizona v. U.S.

(The following essay by IntLawGrrl Hope Lewis is cross-posted from a SCOTUSblog symposium on Arizona v. United States (Arizona's likely appeal to the Supreme Court of United States v. Arizona).

Serious implications for U.S. foreign policy interests and U.S. compliance with international human rights standards will be at stake if the Supreme Court considers Arizona SB 1070’s constitutionality.

The Ninth Circuit’s decision in United States v. Arizona is consistent with U.S. obligations under international human rights law as well as the Constitution. It at least partially protects the significant national interest in the conduct of foreign policy between the U.S. and Mexico as well. The decision upheld U.S. District Court Judge Susan R. Bolton’s preliminary injunction against key portions of Arizona’s infamous “Support Our Law Enforcement and Secure Neighborhoods Act,” also known as Arizona S.B. 1070, as amended by Arizona H.B. 2162 .

Migrants and human rights in the United States
Migrants to the U.S. have fundamental human rights recognized under international law. Our government has been reminded of that fact by authoritative international experts. For example, in a 2008 report to the UN following his mission to the United States, Dr. Jorge Bustamante, who serves as the UN Special Rapporteur on the Human Rights of Migrants, noted “with dismay” that

The … United States lacks a clear, consistent, long-term strategy to improve respect for the human rights of migrants. Although there are national laws prohibiting discrimination, there is no national legislative and policy framework implementing protection for the human rights of migrants against which the federal and local programmes and strategies can be evaluated….
The primary task of …such a national policy should be to recognize that, with the exception of certain rights relating to political participation, migrants enjoy nearly all the same human rights protections as citizens….

The international human rights implications of Arizona S.B. 1070
International monitoring and compliance bodies have taken direct note of the Arizona controversy, as well as other U.S.-based anti-immigrant measures. Shortly after Arizona S.B. 1070 was enacted, several UN independent experts and special rapporteurs issued a joint statement raising strong concerns about its status under international law. They warned that a “disturbing pattern of legislative activity hostile to ethnic minorities and immigrants has been established with the adoption of an immigration law that may allow for police action targeting individuals on the basis of their perceived ethnic origin.…” The experts further called on the State of Arizona and the United States government “to take all measures necessary” to ensure that the Arizona law and other immigration control mechanisms are carried out in a non-discriminatory manner.
The Obama administration itself also briefly placed S.B. 1070 into international human rights context. In an August 2010 submission to the UN Human Rights Council as part of the “Universal Periodic Review” (UPR) process, the U.S. Department of State referred to the Justice Department’s complaint in United States v. Arizona as an example of national efforts to comply with international human rights obligations.
Further, the administration describes international human rights as a matter of national interest. According to the State Department, “The United States understands that the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises.”

U.S. foreign policy and the global economy
Recognizing that the effects of the Arizona legislation are likely to be transnational, the Mexican government filed an amicus curiae brief in the Department of Justice litigation. It argued that S.B. 1070 interferes significantly with cross-border arrangements on trade, labor, tourism, migration, and crime control as well as other aspects of international relations between the U.S. and Mexico. Further, the brief took the position that Arizona S.B. 1070 may violate the civil and human rights of Mexican nationals who travel in Arizona as well as the rights of U.S. citizens of Mexican or other Latino/a descent.
Arizona S.B. 1070, the copycat state laws that followed, and the legal and political reactions to them, are intricately tied to our struggle to elaborate appropriate roles for the U.S. in a global economy. Information, commerce, goods, and services now move freely and rapidly throughout the globe. It stands to reason that people will do so as well. Whether the U.S. responds to such migration flows with a haphazard “patchwork” of ill-advised laws, or instead with a comprehensive approach to immigration reform that respects the fundamental human rights of all is a vital indicator of our future under globalization.

Racial discrimination in the international human rights context
Arizona S.B. 1070 raises concerns under several core international human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ratified by the U.S. in 1992). But human rights advocates, including Human Rights Watch, have focused primarily on the implications of S.B. 1070 for U.S. compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Adopted by the UN General Assembly in 1965, entered into force in 1969, and ratified by the United States in 1994, ICERD’s provisions are deeply informed by the realities of post-World War II racial discrimination.
The treaty requires parties to take measures to prevent, prohibit, and condemn all forms of racial discrimination. It requires the United States to make periodic compliance reports to the Committee on the Elimination of Racial Discrimination. Further, ICERD requires the U.S. to ensure that its branches and agencies as well as state and local authorities are fully informed about the country’s international legal obligations and their roles in helping to fulfill them.
Specifically, under Article 2,

1) States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. …
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists….

In January 2010, at least partially in response to NGO advocacy and concerns about anti-internationalist perceptions in some quarters at state and local levels, Department of State Legal Adviser Harold Koh issued an advisory letter to governors of the fifty states. The letter alerted them to the federal government’s obligation to make periodic and other reports in compliance with international law treaties and standards. The letter also emphasized the related obligations of subnational states to support and comply with the country’s reporting and other human rights commitments.
Despite such awareness-building efforts, even brief references by Department of State officials to the litigation in United States v. Arizona that were included in a diplomatic meeting with China and in a UPR report to the UN Human Rights Council were castigated by Arizona Governor Jan Brewer as “internationalism run amok.”

Defining racial discrimination under international law
Article 1 of ICERD broadly defines “racial discrimination” as follows:

1. … any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality….

The definition’s wide scope reflects a sophisticated and pragmatic understanding of how discrimination operates in the real world. Rather than attempt to define the socially constructed meaning of “race” itself, the drafters drew on the lived realities that the convention was intended to address—the horrors of slavery, colonialism, the Holocaust, genocide, apartheid, and racial segregation as they actually operated. They understood that such discrimination could be explicitly articulated in illegitimate laws and in supremacist or genocidal edicts by dictators. But they also understood that racial bias can be subtly facilitated through facially neutral laws and structures that affect disfavored groups disproportionately. They understood that individuals and groups can be “raced” not only on the basis of skin color, but also on stereotypes about ethnicity, descent, or national origin.

ICERD’s application to noncitizens
ICERD Article 1(2) and (3) allow for sovereignty-based exceptions from the definition of racial discrimination for the national power to regulate citizenship status and immigration flows. Nonetheless, those sovereignty exceptions were never to be read as carte blanche for racial discrimination against noncitizens. In fact, the Committee on the Elimination of Racial Discrimination, the body charged with monitoring compliance and providing authoritative interpretive guidance on the treaty, has now clarified its application to noncitizens.
In its 2004 General Recommendation No. 30: Discrimination Against Noncitizens the Committee states that the citizenship and immigration regulation exceptions in Article 1 of ICERD do not condemn noncitizens to a human rights-free zone. In the Committee’s view:

Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights….
Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law….

Arizona S.B. 1070 and racial profiling
Not surprisingly given the law’s vagueness, internal contradictions, and breadth, human rights, civil rights, and immigrants’ rights organizations charge that Arizona S.B. 1070 is likely to mask or encourage widespread official racial and ethnic profiling. Such profiling is likely to have a disproportionate impact, particularly on Latino/as, indigenous peoples, and other racial and ethnic minorities, whether or not they are lawfully present in the state.
Such profiling falls within ICERD’s definition of racial discrimination and places the U.S. in danger of violating international law. Arizona defends this aspect of its law by arguing that Arizona H.B. 2162, which amended language in S.B. 1070, specifically cures the concerns about racial profiling and official discrimination. For example, language was added to the legislation stating that “[t]his section shall be enforced without regard to race, color, religion, sex, age, disability or national origin.”
But the potential for racial profiling cannot be dismissed so easily. ICERD’s broad definition of racial discrimination does not require explicitly articulated racial animus. Rather, racially discriminatory laws and policies that effectively interfere with the enjoyment of a panoply of fundamental human rights are sufficient to violate obligations under the treaty. Facially neutral laws and policies or even those that explicitly “prohibit” discrimination can still have an empirically disproportionate and demonstrable negative impact on a particular racial, ethnic, or national group in practice.
Arizona S.B. 1070 requires police officers and other authorities to take certain measures if they have a “reasonable suspicion” that a person is an unauthorized alien. Such a vague and subjective standard will, in many circumstances, act as an easily accessible cover for racial discrimination and xenophobia, especially in a political environment that implicitly or explicitly rewards such behavior.
Rather than specify the criteria that could lead to a “reasonable suspicion” about unauthorized status, even well-intentioned officers may be left instead to rely on subjective beliefs and stereotypes. They will be tempted to use color of skin, physical appearance, language, accent, or national origin as proxy indicators of unauthorized or alien status prior to obtaining identification papers. Members of Latino/a communities, indigenous peoples, and other minorities are likely to be targeted, whether they are citizens, tourists, students, usinesspeople, or undocumented workers. As similar laws mushroom throughout the country, similarly specious and unreliable indicia of minority status or “foreign-ness” will be used.

Next steps
As noted above, ICERD requires those national states that ratify the treaty to take appropriate measures to prevent, prohibit and condemn racial discrimination. That includes ensuring that subnational states and local authorities adhere to the treaty’s requirements in implementing U.S. law. Next term, we are likely to learn what the U.S. Supreme Court has to say about the federal preemption question raised by the S.B. 1070 challenge.
Federal, state, and local courts and governments are not the only ones that are engaging with international human rights standards in reference to Arizona S.B. 1070 and similar laws, however. NGO coalitions submitted shadow reports to the United Nations on the government’s compliance with ICERD. Other civil society groups took advantage of opportunities to participate in the country’s 2010-2011 Universal Periodic Review process. Advocates articulated the “Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens” (guidelines advocating for anti-discrimination, health, educational, cultural, housing, family unity, and labor rights).
Further, state and local legislation like New York’s Domestic Workers’ Bill of Rights demonstrate that human rights-friendly and constitutional measures affecting migrant communities can be adopted at all levels of government.

Conclusion
In the likely review of United States v. Arizona, the Roberts Court should address the important international human rights and foreign policy implications raised by Arizona S.B. 1070. If such state laws threaten to place the U.S. in violation of international human rights standards, interfere with international economic and political relations, and complicate, or conflict with, the implementation of federal priorities on migration, then the Court should affirm the Ninth Circuit’s decision on preemption grounds.
Further, in a global economy, the U.S. can no longer afford to ignore, or give short shrift to, the international and transnational human rights implications of migration. Recent estimates put the number of first- and second- generation immigrants in the U.S. at more than 60 million people. Migration law and policy are matters of core national interest. All branches and levels of the U.S. government, therefore, face a choice between a false insularity and isolationism or an inclusive approach to U.S. performance on the world stage.
States and local entities can, and should, play a role in immigration law and policy. But those roles must be taken on in accordance with constitutional standards. In turn, our nation as a whole must more fully embrace human rights for all, including migrants, as we move toward a more responsible place in the international community.

Heartfelt thanks to Fatema Haji-Taki '12 for her research assistance and to professors Ibrahim Gassama, Rachel E. Rosenbloom, and Wendy Parmet for their comments on an earlier draft.

CERD shoehorn fails to fit

Shoehorning the conflict between the Republic of Georgia and the Russian Federation into a race discrimination claim always seemed a bit of a stretch.
Not to say there's no ethnic animus amid the tension that heated into armed conflict a while back. (Prior IntLawGrrls posts available here.) Just that there seemed to be a lot more going on. Still, Georgia's CERD shoehorn -- its effort for secure International Court of Justice review on the basis of the Convention on the Elimination of All Forms of Racial Discrimination -- was creative lawyering. The kind of thing that just might work.
In the end, however, not enough judges were persuaded.
The ICJ has ruled against Georgia in the case known as Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation). Of initial note in the judgment, available here, is the division among judges on the issues presented:
► On Russia's claim that no dispute under CERD Article 22 existed, the vote was 12 judges in favor of the objection, 4 against (among the latter, new Judge Xue Hanqin, of China).
► On Russia's claim that Georgia had not satisfied procedural requirements set out in CERD Article 22, the vote was 10 judges in favor of the objection, 6 against (among the latter, newest Judge Joan E. Donoghue, of the United States).
► On the ICJ's finding that it had no jurisdiction, the same 10 judges voted aye and the same 6, including Donoghue, voted no.
Comment on the full judgment awaits careful reading.

On October 21

On this day in ...
... 1994 (15 years ago today), the United States became a state party to the Convention Against Torture and to the Convention on the Elimination of All Forms of Racial Discrimination, by depositing with the United Nations its instruments of ratification respecting both human rights treaties. As has been its practice in recent decades, the United States attached a series of RUDs -- reservations, understandings, and declarations -- to each of those ratification instruments. IntLawGrrls have tracked the 1st treaty, CAT, here, and the 2d, CERD, through our series here.

(Prior October 21 posts are here and here.)

CERD General Recommendation 32 on Special Measures

At its 75th session in August 2009, the Committee on the Elimination of Racial Discrimination adopted General Recommendation 32 on the meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination. Many of the issues raised in an article I submitted to the Committee in March were addressed. (The article will be published in English and Spanish by the ILSA Journal of International and Comparative Law in 2010.) The most important points of the General Recommendation include:

• Paragraph 6 notes that the principle of equality “combines both formal equality before the law with equal protection of the law, with substantive or de facto equality in the enjoyment and exercise of human rights...”
• Paragraph 7 refers to “intersectionality” which addresses double or multiple types of discrimination. It also notes that it is important to distinguish ‘special measures’ from unjustifiable preference.
• Paragraph 8 provides that differential treatment will constitute discrimination unless it is for a legitimate aim and is not disproportional in the achievement of the aim. On the other hand, equal treatment can constitute discrimination if it is applied to persons or groups whose situations are different, as will “unequal treatment of persons whose situations are objectively the same.” “[N]on-discrimination requires that the characteristics of groups be taken into consideration.”
• Paragraph 9 affirms that the Convention protects a broad scope of rights and non-discrimination not only by public agencies but “ by any person, group or organization.”
• Paragraph 11 notes that special measures are but one component of the means for eliminating discrimination.
• Paragraph 12 lists various terms that are used in the context of special measures, such as ‘affirmative measures’, ‘affirmative action’, or ‘positive action’, but it urges the avoidance of terms such as ‘positive discrimination’ as a contradiction in terms.
• Paragraph 13 notes that measures include a variety of legislative, executive, administrative, budgetary, and regulatory measures at all levels of national, regional, and local government.
• Paragraph 14 emphasizes that the obligation to take special measures is distinct from the obligation to secure human rights and fundamental freedoms in a non-discriminatory manner.
• Paragraph 17 mandates that special measures should be enacted on the basis of accurate data, disaggregated by race, color, descent and ethnic or national origin and incorporate a gender perspective.
• Paragraph 18 notes that States parties should consult with the affected communities prior to enacting special measures.
• Paragraphs 19, 20 and 21 reaffirm that special measures do not constitute race discrimination when taken for the sole purpose of ensuring equal enjoyment of human rights and fundamental freedoms.
• Paragraph 22 notes that programs should have the “objective of alleviating and remedying disparities in the enjoyment of human rights and fundamental freedoms affecting particular groups and individuals, protecting them from discrimination.” They should address structural and de facto inequality, which can include those resulting from historical circumstances, but it is not necessary to prove historical discrimination to validate a program. The emphasis should be on “correcting present disparities and on preventing further imbalances from arising.”
• Paragraph 23 notes that protection against discrimination is from any source including private persons. Special measures can be preventative as well as corrective.
• Paragraph 26 emphasizes the limitations of Article 1, paragraph 4 that includes the prohibition against the maintenance of separate rights for different racial groups and specifically disapproves of apartheid which was imposed by the State. It cautions of the need to distinguish those measures from those that secure the existence and identity of certain groups that are recognized within the framework of human rights, such as minorities and indigenous peoples.
• Paragraph 27 notes that the second limitation is that special measures should not be continued after their objectives have been achieved. The length of time will vary in light of the objectives, the means used to achieve them, and the results of their application. It notes that for this reason they should be “carefully tailored to meet the particular needs of the groups or individuals concerned.”
• Paragraph 30 emphasizes the mandatory nature of the obligation that governments have to undertake special measures.
• Paragraph 31 re-emphasizes the application to all levels of government, whether unitary or federal or decentralized states. In federal states, the federal government is “responsible for designing a framework for the consistent application of special measures in all parts of the State where such measures are necessary.”
• Paragraph 32 again emphasizes the “obligation of States parties to adopt measures tailored to fit the situations to be remedied and capable of achieving their objectives.”
• Paragraph 34 also emphasizes that the beneficiaries of special measures may be groups or individuals belonging to such groups. It also provides for the self-identification of the individual concerned unless there is a justification to the contrary.
• Paragraph 35 addresses the similarity in limitations in articles 1, paragraph 4, and 2, paragraph 2. It mentions that the time limitations necessarily involves monitoring of their application and results by using both quantitative and qualitative methods of appraisal. It also notes that States parties should assess what the human rights consequences might be upon an abrupt withdrawal of special measures, especially those that have been established for a lengthy period of time.
  

Guest Blogger: Gay McDougall

It's IntLawGrrls' immense honor to welcome Gay McDougall (right), the United Nations' Independent Expert on Minorities, as today's guest blogger.
Gay was appointed to serve in that post for a 6-year term in 2005. From 2006 until 2008, she also held an appointment as Distinguished Scholar in Residence at the Washington College of Law, American University, Washington, D.C. (home institution of IntLawGrrls). From 1994 to 2006, Gay was the Executive Director of the human rights advocacy group Global Rights, leading the development and implementation of programs in Africa, Asia, Eastern Europe and the Americas.

Gay was the 1st American to serve on the Committee on the Elimination of Racial Discrimination (CERD), the U.N. treaty body that oversees the International Convention on the Elimination of all Forms of Racial Discrimination. While in that position, she drafted and sponsored for adoption General Recommendation No. 25: Gender related dimensions of racial discrimination. From 1997 to 2000 she was a member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights, and was U.N. Special Rapporteur on the issue of systematic rape, sexual slavery, and slavery-like practices in armed conflict. In the latter capacity she presented to the United Nations a then-groundbreaking study that called for international legal standards for the prosecution of acts of systematic rape and sexual slavery committed during armed conflict.
In 1994, she was appointed the only American member of the 16-member 1994 Electoral Commission of South Africa, which organized the process that resulted in the election of President Nelson Mandela. For the previous 14 years, she'd worked with South African lawyers for the release of thousands of political prisoners. Gay also founded the Commission on Independent Elections that monitored Namibia’s transition to democracy.
Gay earned her J.D. from Yale Law School in 1972 and her LL.M. from the London School of Economics and Political Science in 1978. She holds honorary Doctor of Laws degrees from Georgetown University Law Center and the City University of New York Law School.
Among her many honors is a 1999 MacArthur Foundation Fellowship, awarded on account of what the foundation called her “innovative” work in international human rights.
In her guest post below, Gay discusses her work as the United Nations' expert on minorities, about which IntLawGrrls earlier posted here, here, and here.
Heartfelt welcome!

Remembering Sharpeville

Today, March 21, is the International Day for the Elimination of Racial Discrimination. The day marks the 1960 massacre of nearly 70 people in the Sharpeville township outside of Johannesburg, South Africa, about which IntLawGrrl Diane Marie Amann also posts below.
The 69 persons who died and the 300 who were injured had joined tens of thousands in a peaceful protest of the apartheid regime’s oppressive pass laws; then police “deliberately opened fire on the unarmed crowd.” (credit for photo captioned "Protestors fleeing the Sharpeville Police Station, 21 March 1960")
The U.N. General Assembly declared the day one of remembrance and action in 1966, calling on the international community “eliminate racial discrimination and apartheid.”
Yet more than 50 years after that declaration Navanethem Pillay (below right), the U.N. High Commissioner for Human Rights and herself a native of Natal, South Africa (prior post), reports that “millions of people around the world . . . are still, today, victims of racism and racial discrimination.” Just last year, as IntLawGrrl Jaya Ramji-Nogales posted then, Gay McDougall, the U.N. Independent Expert on minority issues, and Githu Muigai, the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related forms of intolerance, called for an end to “anti-Roma sentiment and violence” in Europe. And in the United States, African Americans are reportedly more than 10 times likely to be sent to prison than whites for drug offenses.
Frustratingly, amid this climate of ever-present global racism, states have failed to reach consensus regarding the Durban Declaration and Programme of Action, a comprehensive international program of action aimed preventing racial discrimination. The declaration was the result of the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa, which, though intended to “create a new world vision for the fight against racism in the twenty-first century," was nearly derailed by disagreement regarding Israeli-Palestinian relations.
In the 8 years since Durban, negotiations around the declaration have been fraught with conflict between the parties, particularly with respect to Israel and religious defamation. Next month, from April 20 to 24, country and NGO representatives will convene at the Durban Review Conference in an effort to surmount these challenges and agree on the declaration’s text. To that end, a preparatory committee of UN member states and NGOs recently revised its draft outcome document for the conference by shortening it and converting it into a “rolling text” in hopes of breathing new momentum and confidence into the negotiations. Highlights of the rolling text include calls:
► for U.N. member states to contribute to a Trust Fund for the Programme of the Decade to Combat Racism and Racial Discrimination;
► for special attention to women, refugees and migrant workers suffering from racism and racial discrimination; and
► for renewed calls for ratification and removal of reservations to the Convention on the Elimination of all Forms of Racial Discrimination.
Reflecting upon the document and the challenges facing conference negotiators, Commissioner Pillay, about whom IntLawGrrl Fiona de Londras also posts today, said:

I urge all states to refrain from taking narrow politicized or polemical stances on particular issues, and to work together for the remainder of the process towards a successful outcome for the victims of racial discrimination and intolerance around the world.

DC Residents: Lack of the Right to Equal Political Participation

Federal legislation on the economy, jobs and the workplace, health and safety, education, the environment and countless other matters are before the US House of Representatives and US Senate, where over half a million US citizens, residents of the District of Columbia, have no effective voting representation. Though they pay federal taxes, serve in the military, and are bound by all legislation passed by Congress and signed into law, they have no Senators, and their one Representative in the House does not have full voting rights. Washington DC has more residents than Wyoming, whose residents have two Senators and one Representative.
The District of Columbia is the only federal district in the Americas whose residents are denied equal voting representation in the national legislature. The constitutions of other states in the region all provide for full voting representation in the national legislative body: Buenos Aires, Argentina; Brasilia, Brazil; Mexico City, Mexico; and Caracas, Venezuela.
But as the United States said in 2005 in its report to the Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, the US Constitution (art. 1, sec. 8) “gives Congress exclusive jurisdiction over the ‘Seat of Government of the United States’ which is the District of Columbia (D.C.)," and “[i]n light of the requirement in Article 1, section 2 of the Constitution that the members of the House of Representatives be chosen by the people of the ‘States,’ the Administration has taken the position that congressional representation for the District would require a constitutional amendment.”
It should be noted that the Administration did nothing to promote such an amendment. Click here for articles by scholars challenging the notion that a constitutional amendment is required.
A constitutional amendment campaign began back in 1978 to give District residents representatives and senators, but only 16 states ratified the amendment within the seven year time limit, bringing that effort to an end. Legislation to give DC one voting representative in the House is currently pending in both the House and Senate, and a hearing on the House bill was held on 27 January 2009. Click here list of witnesses and links to their testimony.
Advocates for full political participation for District of Columbia citizens have turned to several international human rights bodies for attention to this concern:
► Inter-American Commission on Human Rights
In 1993, the Statehood Solidarity Committee petitioned the Inter-American Commission on Human Rights (IACHR) of the Organization of American States, alleging violations of Article II (right to equality before the law) and XX (right to vote and to participate in government) of the American Declaration of the Rights and Duties of Man.
The IACHR found a violation of these rights, and expressed concern "that the absence of Congressional representation for the District of Columbia has had a disproportionately prejudicial impact upon a particular racial group" - African Americans - "in light of the considerable African-American majority that has evolved in the District’s population over the past 40 years."
► Human Rights Committee / ICCPR
The Human Rights Committee saw fit to address the lack of voting representation for DC residents in its Concluding Observations regarding the United States in 2006:
36. The Committee, having taken note of the responses provided by the delegation, remains concerned that residents of the District of Columbia do not enjoy full representation in Congress, a restriction which does not seem to be compatible with article 25 of the Covenant. (articles 2, 25 and 26)
The State party should ensure the right of residents of the District of Columbia to take part in the conduct of public affairs, directly or through freely chosen representatives, in particular with regard to the House of Representatives
► Committee on the Elimination of Racial Discrimination (CERD)
The US report to the Committee on the Elimination of Racial Discrimination in 2007 stated, inter alia: “Because the United States was founded as a federation of formerly sovereign states, this provision [regarding the District of Columbia] was designed to avoid placing the nation’s capital under the jurisdiction of any one state. Thus, the reason for this provision was governmental structure, not racial.”
The Civil Society Shadow Report to CERD, however, submits that the lack of equal political participation constitutes a violation of Article 5( c) of the Convention on the Elimination of All Forms of Racial Discrimination: “Because a majority (as much as 75%) of the District’s residents is African-American, this disfranchisement is a violation of Article 5, which requires universal suffrage.”

"Concluding Observations"?: Just the Beginning...

There's been an important victory in the UN last week for those hoping to hold the U.S. accountable for violating international human rights law. On Friday, the UN Committee on the Elimination of All Forms of Racial Discrimination (CERD) issued its "Concluding Observations" on the 2007 U.S. Periodic Report to that body. As reported in recent blogs on "Race-ing Human Rights" and "UN on Katrina, Race, and Housing" more than 120 U.S.-based activists descended on Geneva for the CERD Committee's session that reviewed the U.S. report along with those of several other countries.
Well-known international NGOs issued shadow reports (such as "Race and Ethnicity in America: Turning a Blind Eye to Injustice" (by the American Civil Liberties Union)) and formal letters of criticism (such as one by Human Rights Watch stating that "The United States Was Not Forthcoming and Accurate in its Presentation to CERD." Each criticized U.S. domestic law and policy on civil rights, criminal justice, and the treatment of indigenous peoples as racially and ethnically discriminatory in impact or intent. The United States, therefore was alleged to be not in compliance with its international legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.
But it was the coalitions of grassroots organizations, academics, and smaller NGOs that caused the biggest stir. There were too many active participants in Geneva and back in the U.S. to name all of them here, but among those organizing the various coalitions and working groups were Professor Lisa Crooms of Howard University Law School and Ajamu Baraka, Director of the United States Human Rights Network. (See the USHRN website link for its shadow report, blogs on events in Geneva, and subsequent press coverage).
The U.S. administration seemed a bit nervous about growing efforts to apply international human rights legal standards to U.S. actions and sent a high-level delegation to Geneva. It also bristled at allegations with regard to the racially and ethnically discriminatory character of extraordinary renditions. (See official statement and letter to CERD Committee here.)
The CERD Concluding Observations picked up on many key concerns identified in the USHRN shadow report, reports by indigenous peoples, and by the large NGO reports. Among other things, the CERD Committee raised questions about the treatment of displaced persons after Hurricanes Katrina and Rita, including disproportionate effects on African-Americans, the status of the Western Shoshone, racial profiling, housing discrimination, juvenile justice, voting rights abuses, the treatment of migrant workers and their families, the U.S.-Mexico border fence and anti-immigrant vigilantism, and the need for low-income people to have access to civil counsel. Significantly, the Committee also inquired into U.S. profiling and detentions of people of South Asian or Arabic descent as part of its mandate to monitor racial discrimination. (Photo at left: Mary McLeod Bethune, educator and early advocate for a UN focus on human rights and civil rights in the United States.)
Although the statements are called "Concluding" Observations, the work of the CERD Committee, and that of the activists who are holding the U.S. government accountable, is far from over. The Committee requested updates from U.S. officials on specific issues (such as Katrina displacement) within 1 year. Activists are gearing up to make the Committee's findings more widely known.
We'll see what the U.S. presidential candidates have to say about our international and domestic legal and moral obligations to end racial discrimination, whether in intent or effect. No matter who is elected, the real work has just begun...

UN on Katrina, Race, and Housing

Will "naming and shaming" the United States of America help displaced survivors of Hurricanes Katrina and Rita? Human rights advocates hope that this traditional human rights strategy will draw more attention to the lack of public and affordable housing in New Orleans and other parts of the U.S. Gulf Coast. (credit for 1st & 3d photos (c) 2007; Mavis Young)

They've made an important first step.

The UN Independent Expert on Minority Issues, Gay McDougall, along with the UN Special Rapporteur on Adequate Housing, Miloon Kothari, issued a press statement this week outlining serious concerns about U.S. government actions post-Katrina. The unusual statement followed a Geneva meeting of the UN Committee on the Elimination of All Forms of Racial Discrimination to discuss the most recent U.S. periodic report. Shadow reports from human rights NGOs and representatives of indigenous peoples documented the continuing displacement, racial discrimination, shortages of health and human services, and labor abuses still pervasive in the Gulf region. (In photo below left, the U.S. delegation meets with NGO representatives. For more on this issue, see, e.g., "Race-ing Human Rights" and posts by Diane Amann and Jaya Ramji-Nogales previously posted on IntLawGrrls.)

Housing rights activists have been protesting the closing of public housing units in predominantly African-American and poor neighborhoods in New Orleans (below right). They charge that some housing stock can be renovated rather than bull-dozed and that rebuilding plans do not provide for replacement of lost public housing units one-for-one.

The UN Statement captures the Catch-22 facing many New Orleans residents or former residents. There is a shortage of adequate, affordable housing thereby making it difficult or impossible for some former residents to return. Yet, if housing is to be repaired or rebuilt, government officials focus primarily on housing that is even less accessible to African-Americans and the poor (many of whom are women with children) than had previously been the case. Some officials then argue that far fewer public or low-income housing units are necessary because so few are able to return.

UN experts McDougall and Kothari noted that decisions by the U.S. Department of Housing and Urban Development and local government

would lead to the demolition of thousands of public housing units affecting approximately 5,000 families who were displaced by Hurricane Katrina. The demolition of the St. Bernard public housing development apparently commenced the week of 18 February 2008 and others are planned for the Lafitte, B.W. Cooper, and C.J. Peete public housing developments.

Although some believe social and economic matters such as health care, education, and adequate housing are only relevant for humanitarian efforts outside the U.S., these fundamental human rights should be respected and protected within U.S. borders as well. For example, Principle 28 of the morally and politically binding Guiding Principles on Internal Displacement emphasizes that those most affected by disaster have a right to return and to participate in rebuilding and restoration planning:

1. Competent authorities have the primary duty and responsibility to
establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.
2. Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration.

The Guiding Principles prohibit discrimination on the basis of race, sex, language, and disability in the recognition or protection of the human rights and humanitarian principles it promotes. Further, the International Convention on the Elimination of All Forms of Racial Discrimination prohibits (under Article 5(e)(iii)) racial discrimination in the enjoyment of the right to housing.

Natural disasters devastate all in their path, without regard to race, gender, age, or class. But the unconscionable performance of some U.S. federal, state, and local officials before, during, and after Hurricanes Katrina and Rita illustrate that some disasters may have unnatural consequences. Systematic racial discrimination and neglect, policies that abandon millions to grinding poverty, and cynical disregard for the needs of persons with disabilities and the elderly can limit the ability to escape and can intensify the length and severity of the disaster's impact. Such governmental failures to comply with international humanitarian and human rights standards can have a disproportionate effect on marginalized or stigmatized groups in our society--racial and linguistic minorities, the poor, the elderly, women, and children. The risks to them cannot be taken for granted by the U.S. government or any other. Governments must undertake affirmative measures to ensure that those groups likely to be disproportionately affected by emergencies can fully participate in planning, resource allocation, and rebuilding efforts. That is the only way to protect their human rights fully.

"Race-ing" Human Rights in the U.S.

U.S. human rights advocates from the U.S. Human Rights Network (USHRN) and other groups arrive in Geneva this week to highlight the impact of racial and ethnic discrimination in the United States. The United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD) is meeting from 18 February to 7 March to review periodic reports from the United States of America (State Dept. official list of periodic reports), the Republic of Moldova, the Republic of Fiji Islands, Belgium, Dominican Republic, and Italy.
The USHRN, Amnesty International, Human Rights Watch, the American Civil Liberties Union, indigenous peoples organizations, and other groups have submitted substantial NGO shadow reports to the CERD Committee criticizing the inadequacy of the official report. The NGOs address immigrants' rights and the rights of undocumented workers, the Katrina disaster and its continuing aftermath, disparities in the incarceration and execution of prisoners, racial disparities in education, health care, and housing, and the self-determination of indigenous peoples and nations.
Given its historical resistance to domestic application of international human rights standards, it may seem surprising that the State Department is sending an official delegation and scheduled meetings with NGOs prior to leaving for Geneva. (On the history of U.S. resistance to the use of international human rights law within its own borders, see, for example, Carol Anderson's Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955 (2005) and Bringing Human Rights Home: A History of Human Rights in the United States (2007), edited by Cynthia Soohoo, Catherine Albisa, and Martha Davis).
Racial and ethnic discrimination in all its forms has long been recognized as a barrier to international peace and security. (See, for example, Paul Gordon Lauren's Power and Prejudice: The Politics and Diplomacy of Racial Discrimination (1996).) Discrimination based on race, ethnicity, or color, whether against minority groups in Eastern Europe, Blacks and Asians in apartheid South Africa, or African-Americans, Native Americans, Latinos/as, and Asian-Americans in the United States, is violation enough. And it presents another barrier to the full enjoyment of other civil, political, economic, social, and cultural rights. It also can lead to the kind of internal mass violence,refugee flows, and cross-border violence that require international legal and political responses. (Photo of UN Independent Expert on Minority Issues, Gay McDougall)
A student in my human rights seminar is writing a paper on ethnic and national origin discrimination in France. Much of the class discussion centered around the importance of internaitonal instruments in creating awareness. How can race-based or race-related concerns ever be addressed if governments and other key actors refuse to admit that they exist?
Controversies about the definition of "race" and whether it has been "transcended" in the U.S. presidential campaign continue. The International Convention on the Elimination of All Forms of Racial Discrimination, the NGO reports, and the discussions in Geneva reveal that it is "racism" that must be "overcome," not "race" itself.

Is Steinem Wrong?

I grew up with Ms. Magazine and often find myself in agreement with Gloria Steinem, the Ms. Co-Founder pictured below left. That is perhaps what makes her op-ed in Tuesday's NYT so disappointing.
In it, Steinem argues that "gender is probably the most restricting force in American life." To make her point, she contrasts the experience of being female with that of being black and suggests that the former constitutes a more formidable obstacle to success in American politics than the latter. She suggests that the historical stereotyping of “black men as more ‘masculine’” works to their advantage in contemporary politics. How quickly Steinem forgets the scores of black men lynched as a response to the racist conception of black men as a hyper-masculinized threat to white women’s sexuality.
Although Steinem asserts that she is not “advocating a competition for who has it toughest,” her op-ed piece does exactly that. Steinem acknowledges that “the caste systems of sex and race are interdependent and can only be uprooted together.” Her piece, however, undermines this important insight and attempts to drive a wedge between the feminist and anti-racist movements, marginalizing women of color in the process.
Perhaps Steinem should take a cue from the U.N. Committee on the Elimination of Racial Discrimination (CERD), a committee that has, in recent years, embraced an intersectional understanding of race and gender discrimination. In its General Recommendation 25, the CERD Committee explores the ways in which gender and race discrimination are interconnected and mutually reinforcing. This approach reflects the “third wave” of feminism (described here by Amy Schriefer), and has greater potential to combat both racism and sexism than Steinem’s more divisive approach. (photo credit)