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.

"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)