"New Paths for Action Against Racism and Poverty in the United States and All Its Territories,"

by Ann Fagan Ginger March/April 2007 issue of Poverty & Race

There is a little known law on the books in the U.S. today that a few people are starting to use successfully against acts of discrimination based on race and poverty.

When I ask activists and journalists, lawyers and city officials, students and professors whether the U.S. ever ratified the U.N. Convention on Elimination of All Forms of Racial Discrimination (CERD), almost everyone says they doubt it.

When I advise that the Senate did quietly ratify this treaty in 1994 (140 Cong. Rec.S7634, 660 U.N.T.S. 1959), which includes the duty to file reports with the CERD Committee every two years, and ask whether the U.S. has ever filed these reports, most assume no reports have been filed.

When I advise that the U.S. did file its first report just before the U.N. World Conference Against Racism in Durban in 2001, they are surprised, but not when I advise that the second report has yet to be filed.

And they often say that ratifying such a treaty doesn’t make any difference in the discriminatory practices of cities, counties, states or the federal government in the United States and its territories, or the actions of corporations that do business with the government, because the U.S. has a long history of breaking treaties.

I reply that “Nelson Mandela wouldn’t agree with you. That is, the heroic people of South Africa found a way to cause the United Nations General Assembly to declare that apartheid is a crime, and isolated the South African government, which did help shorten the time until apartheid was ended.”

A treaty is “the supreme law of the land” under the U.S. Constitution, Article VI, clause 2. And when the U.S. ratified this treaty, it made a commitment to make the required periodic reports on discrimination based on “race, color, descent, or national or ethnic origin,” just as the U.S. requires every nation seeking funding from the World Bank or the International Monetary Fund to make periodic reports or lose such funding. And the Congress requires the State Department to make a report every year on the human rights situation in every nation in the world, which they must use in deciding whether any U.S. aid should go to that country (Foreign Assistance Act, 22 U.S.C. 2151p-2151D).

We recently saw another example of the value of a nation making a report to one of the U.N. Human Rights Committees. It is not a page-one headline story, but the fact is that the U.S. Government was sufficiently shamed by the comments of members of the U.N. Human Rights Committee concerning alleged racism in dealing with Katrina victims (“internally displaced persons”) that the U.S. took several steps. It said more money was being sent to aid the victims. And it said an investigation was under way as to what happened on the bridge when people of color and people with little money tried to flee to higher ground. And for the first time it agreed to a series of off-the-record meetings with a network of Non-Governmental Organizations to discuss how to improve compliance with the suggestions the U.N. Committees made in their Concluding Observations after hearing and discussing the U.S. Reports to the U.N. Human Rights Committee and the U.N. Committee Against Torture (UN DocA/56/18, ¶¶ 380-407 [2001]).

What about CERD?

This reporting process opens up new opportunities for everyone concerned about official and unofficial forms of discrimination based on race (and poverty and gender), at the local as well as the national levels, because the CERD Committee has specifically recommended that the next U.S. “periodic report contain comprehensive information on its implementation at the state and local levels and in all territories under United States jurisdiction, including Puerto Rico, the Virgin Islands, American Samoa, Guam and the Northern Mariana Islands.” This obviously includes all Native American reservations and should include all other territories under U.S. jurisdiction. (The U.S. is contesting its duty to report on CERD enforcement/violations at Guantanamo and Abu Ghraib.) The Committee also recommended that the U.S. “undertake the necessary measures to ensure the consistent application of the provisions of the Convention at all levels of government.”

Will Berkeley Be the First?

It is useful to describe the series of events that are moving Berkeley, California into becoming the first U.S. city to actually file a report with the state Attorney General for inclusion in what should be his first state report for inclusion in the U.S. State Department’s Second Report to a U.N. human rights committee. The path to compliance in Berkeley turns out to be about the same as it would be in any other city, once the officials acknowledge the treaty and reporting requirements.

The reason Berkeley can be moved faster today is that in 1990, the City Council adopted Articles 55 and 56 of the U.N. Charter as Berkeley Human Rights Ordinance No. 5985 N.S. And in 1993, the Berkeley Commission on Peace and Justice (which I then chaired) convinced the Berkeley City Council to request that its Youth, Labor, and Status of Women Commissions and its Police Review Board prepare reports on their actions covered by the International Covenant on Civil and Political Rights, derived from the Universal Declaration of Human Rights. These reports were submitted to the U.S. State Department for inclusion in its First Report to the U.N. Human Rights Committee, which enforces that treaty. While the State Department never acknowledged receipt of this report, the City also sent the report directly to the Committee.

I was one of two representatives of Meiklejohn Civil Liberties Institute who attended Committee meetings in New York in 1995 when this first U.S. report was discussed. I learned several things from this experience:

Committee members can all be invited to informal social events or teach-ins, before their formal U.N. sessions with U.S. Government officials, where NGOs can discuss informally the issues raised in their unofficial “shadow” reports.
Committee members from all over the world welcome the chance to learn more about a nation from NGOs, since many are professors and active community leaders in their nations. This can lead them to ask very pertinent questions of State Department, Justice, Labor, Environmental Protection Agency, etc. officials attending the Committee sessions, questions that would not have arisen from simply reading the official report with few examples of actual events.
The fact that a City official must prepare and send a report to a U.N. Committee in Geneva brings the whole U.N. process into the thinking of that official and everyone who works on the report. Since 1993, it is common for a resolution proposed to the Berkeley City Council on any subject of global as well as local significance to include a requirement that a copy be sent to the U.N. Committee chair in care of the U.N. High Commissioner for Human Rights.

In January 2007, the Berkeley Commission on Peace and Justice adopted a resolution asking the City Council to take several steps to enforce CERD:

Agree to make a City report, requiring every City department to hold training sessions on the provisions of CERD.
Send the report to the state Attorney General for use in making his state report.
Notify the County Board of Supervisors about the report.
Urge the state Attorney General to contact all cities and counties to make reports to him for inclusion in his state report.

City, state and even federal government reports to U.N. Committees must be kept short! The U.N. must translate every report into six languages, which takes much staff time and money the U.N. does not have.
NGOs making unofficial “shadow” reports are also strongly advised to keep this in mind.

The Berkeley Senior Management Analyst of the Department of Health and Human Services soon prepared the required preliminary template—i.e., Department questionnaire: “The city of Berkeley has a long history of supporting efforts to promote human rights and the elimination of barriers to those human rights. To honor the local reporting requirements under the Convention, each City Department is asked to respond to the following questions:

What are your Department’s policies and procedures to address allegations of discrimination by citizens who feel they were denied access to a City program or service based upon race, color, religion, ancestry, national origin, age, gender, sexual orientation, marital status, political affiliation, physical or mental disability or medical condition? Please provide copies of written policies and procedures.
How many allegations from citizens did your Department receive in FY 2006 & FY 2005?
What was the outcome from these cases?
Provide a summary of your Department’s current programs and/or services that address racial discrimination and its effects (e.g., economic and social disparities) in the Berkeley community. For each program/service, briefly describe the problem and how your Department addresses it. If data are readily available, please provide highlights. (Examples might include number of people of color served versus total number of people served; data describing the problem, such as data on economic disparities in the community; or data illustrating change in the effects of discrimination or in service levels over time.)
Briefly describe any new programs or services under development or that may be needed to meet emerging or underserved needs.”
A problem: The City Council and City Manager have no authority over the City Superintendent of Schools or the District Attorney of the County. It remains to be seen who will ask these bodies to submit reports to the City Manager to include in his report. And will the City government assume authority over corporations doing business in the city to require them to change their policies based on an international treaty they also never heard of?

Beyond Berkeley

At its February 2007 meeting, the Bay Area United Nations Association passed a resolution to participate in this work by: encouraging the County Board of Supervisors to follow the City Council in filing a report; contacting the state Attorney General to file a state report; and encouraging Berkeley residents to compile facts on the issues highlighted by the CERD Committee: racial profiling, treatment of immigrant workers, medical care coverage of people of color and the poor, Board of Education policies to defeat racism, treatment of Muslims/Arabs, Native Americans and other minority group members, and problems of race/gender/sexual orientation discrimination—and to submit them for inclusion in the City report. The Association also agreed to raise this with the media and with its national office.

County and state reports should include questions not asked by Berkeley city officials:

Examples and statistics on whether heavier sentences were imposed in the jurisdiction for defendants from non-White racial, ethnic or national origins since 2001.
Examples and statistics on whether sentences for felonies were heavier depending on the race of the defendant and the victim, including capital punishment cases.

Did the city/county/state act when the disparity was brought to their attention?
Describe examples of government acting to stop discrimination based on race or national origin in employment practices: hiring, pay, compulsory overtime, firing for organizing unions, etc.
Describe steps the government has taken to deal with racial discrimination in housing, and current problems re cuts in Section 8 housing, and steps proposed but not acted on.

(The NYC CERD Working Group held an initial Shadow Report meeting on March 15 at the Urban Justice Center; information about follow-up meetings from rortega@urbanjustice.org)

The first deadline for the first city, county and state reports is fast approaching, because the State Department recently told the U.N. Human Rights Committee meeting in Geneva that it will file its second CERD Report in late April, 2007. Other cities, counties and states may follow Berkeley’s example and ask agencies to file a short, preliminary report that will not take too long to prepare, and file a more complete report later. Any city report must be sent to the state Attorney General for inclusion in his report. However, the State Department had not informed states that they have an obligation to file such a report by March 15, 2007.

The California and national NAACP, People’s Institute West, National Lawyers Guild, Bay Area Labor for Peace and Justice, Women’s International League for Peace and Freedom, and two California county Democratic Party clubs joined this work in February.

The Meiklejohn Civil Liberties Institute is continuing to urge activists to convince local government officials to prepare the required reports and submit them to the State Department, which can include them in the updated report to the Committee will file shortly before the Committee considers the U.S. report in August 2008.

One Report Can Lead to Three or Even Six

The first reports by city agencies under CERD can also serve as the basis for later reports to CERD by the city, county or state after studying the 2007 U.S. report to CERD and reports due under the other two human rights reporting treaties the U.S. has ratified: the International Covenant on Civil and Political Rights (reports due every five years) and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (reports due ever three years).

And there are campaigns in a number of cities and states to make the Convention on Elimination of Discrimination Against Women, which also has reporting requirements, part of local law. President Carter signed this treaty in 1980, but the Senate has yet to ratify it.

The same is true of the Convention on the Rights of the Child, a treaty ratified by every other nation in the U.N. (192), except the U.S. and Somalia.

Pres. Carter also signed the International Covenant on Economic, Social and Cultural Rights, the other half of the Universal Declaration of Human Rights. This treaty also requires reporting every five years, at the federal, state and local levels. It spells out in detail types of illegal activities that result in denial of human rights based on economic status and lead to economic, social and cultural discrimination.

Ann Fagan Ginger (Ann@mcli.org) is Executive Director of Meiklejohn Civil Liberties Institute. She is a lawyer, retired professor and editor of “Landmark Cases Left Out of Your Textbooks” (MCLI 2006) and 170 reports in Challenging U.S. Human Rights Violations Since 9/11 (Prometheus Books 2005).

Ann Fagan Ginger is Executive Director of Meiklejohn Civil Liberties Institute. She is a lawyer, retired professor and editor of “Landmark Cases Left Out of Your Textbooks” (MCLI 2006) and 170 reports in Challenging U.S. Human Rights Violations Since 9/11 (Prometheus Books 2005). Ann@mcli.org

[10525]

Search for: