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Chandra Bhatnagar (With research assistance from Frank Knaack) American Civil Liberties Union

“CERD: 101” Overview of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and ACLU CERD Advocacy. Chandra Bhatnagar (With research assistance from Frank Knaack) American Civil Liberties Union.

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Chandra Bhatnagar (With research assistance from Frank Knaack) American Civil Liberties Union

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  1. “CERD: 101”Overview of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and ACLU CERD Advocacy Chandra Bhatnagar (With research assistance from Frank Knaack) American Civil Liberties Union

  2. WHAT ARE HUMAN RIGHTS?The rights that someone has simply because they are a human being.- Inalienable - Universal - Interconnected - Indivisible - Non-Derogable** In certain exigent circumstances, governments may derogate a limited set of rights, though they have to officially derogate from the requirements of the treaty.

  3. What is International Human Rights Law? The formal expression of inherent human rights 2 Primary Sources of International Law: -Treaties Customary International Law

  4. International Human Rights Treaties Agreements between countries to be bound by a particular set of rules Synonyms Charters, Covenants, Conventions, Accords, Protocols and Agreements Definitions Signature and Ratification: A country’s formal expression of its consent to be bound by the terms of a treaty State Party: Country who has signed & ratified a treaty Domestic Incorporation

  5. *International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) • *International Covenant on Civil and Political Rights (ICCPR) • International Covenant on Economic, Social and Cultural Rights (ICESCR) • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) • *Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) • Convention on the Rights of the Child (CRC) • International Convention on the Protection of All Migrant Workers and Members of Their Families (ICRMW) • * Signed and Ratified by the United States Key Human Rights Treaties

  6. International Covenant on the Elimination of All Forms of Racial Discrimination • U.S. signed in 1966, but did not ratify until 1994 • Defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, color, 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.” • Prohibits all laws and policies that have a racially discriminatory impact -- regardless of intent. • Allows for and in some cases obliges positive measures such as affirmative action in order to redress racial inequalities. CERD requires that “States Parties shall, when the circumstances so warrant, take… special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals… for the purpose of guaranteeing them the full and equal enjoyment of human rights… .” • Incorporates civil and political rights, as well as economic, social, and cultural rights together in one instrument. Focus is on the ways that these intersecting rights affect racial minorities.

  7. Treaty Based Bodies • Committee for the Elimination of All Forms of Racial Discrimination (CERD) • Human Rights Committee (ICCPR) • Committee on Economic, Social and Cultural Rights (ICESCR) • Committee on the Elimination of Discrimination against Women (CEDAW) • Committee Against Torture (CAT) • Committee on the Rights of the Child (CRC) • Committee on the Rights of Migrant Workers (ICRMW)

  8. Treaty Committee Functions Examine State Party Reports • Each State Party is required to submit a periodic report on compliance with the terms of the treaty • Treaty Committee examines a State Party report, reviews supplemental “shadow reports” submitted by NGOs, and questions State Party on compliance with treaty in a public hearing, known as a “Constructive Dialogue” Issues Concluding Observations to State Party • Committee recommends ways in which State Party can improve compliance and emphasizes areas which need improvement for the next reporting period

  9. Concluding Observations • Treaty Body can call upon State Parties to adopt, modify, or enforce legislation to come into compliance with treaty obligations. HRC issued the following guidance following their review of the US last summer… ”The Committee… remains concerned about information that the poor, and in particular African-Americans, were disadvantaged by the rescue and evacuation plans implemented when Hurricane Katrina hit the United States, and continue to be disadvantaged under the reconstruction plans. (articles 6 and 26) The State party should review its practices and policies to ensure the full implementation of its obligation to protect life and of the prohibition of discrimination, whether direct or indirect, as well as of the United Nations Guiding Principles on Internal Displacement, in matters related to disaster prevention and preparedness, emergency assistance and relief measures… The Committee wishes to be informed about the results of the inquiries into the alleged failure to evacuate prisoners at the Parish prison, as well as the allegations that New Orleans residents were not permitted by law enforcement officials to cross the Greater New Orleans Bridge to Gretna, Louisiana.”

  10. Reporting Requirements • Treaty Bodies may call upon State Parties to submit supplemental information on issues raised during the Constructive Dialogue. Following the 2006 Constructive Dialogue with the US, the Committee Against Torture issued the following request… • 42. “The Committee requests the State party to provide detailed statistical data, disaggregated by sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by law-enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to such complaints. It requests the State party to provide similar statistical data and information on the enforcement of the Civil Rights of Institutionalized Persons Act by the Department of Justice, in particular in respect to the prevention, investigation and prosecution of acts of torture, or cruel, inhuman or degrading treatment or punishment in detention facilities and the measures taken to implement the Prison Rape Elimination Act and their impact. The Committee requests the State party to provide information on any compensation and rehabilitation provided to victims. The Committee encourages the State party to create a federal database to facilitate the collection of such statistics and information which assist in the assessment of the implementation of the provisions of the Convention and the practical enjoyment of the rights it provides. The Committee also requests the State party to provide information on investigations into the alleged ill-treatment perpetrated by law-enforcement personnel in the aftermath of Hurricane Katrina.”

  11. How Can the ACLU Use the Treaty Reporting Requirements in Our Advocacy? • Reporting Requirements afford ACLU and other NGO’s: • The ability to gain additional information regarding non-compliance by State Parties (like the US), as well as state specific and national data for potential future litigation and advocacy. (eg. State specific or national racial profiling hit rates for stop and frisks) • The ability to publicly pressure state and federal governmental actors to comply with human rights obligations.

  12. Upcoming ACLU CERD Advocacy • December 10th (celebrated globally as International Human Rights Day) will feature the release of the ACLU’s report on CERD along with an ACLU National Day of Action to highlight local advocacy against racial discrimination. • The ACLU is partnering with a coalition of over 100 NGO’s and will bring a delegation of national and affiliate representatives to Geneva to take part in the Constructive Dialogue featuring the United States in late Feb/early March. • HRP will continue to work with national projects and affiliates to use the CERD Committee’s Concluding Observations to support local human rights advocacy and litigation around racial justice issues.

  13. Using Human Rights to Effect Change: ACLU Success Stories: • In July 2006, the ACLU sent a delegation of 11 – representing 3 affiliates, 4 national projects and three clients (Khaled El-Masri, Father Roy Bourgeois and Jessica Gonzales) – to Geneva to advocate before the UN Human Rights Committee (HRC). Our advocacy led the Committee to issue Concluding Observations strongly criticizing the U.S. for its failure to comply with its human rights obligations. • In June 2006, HRP and the ACLU of Texas conducted a week of human rights advocacy at the border in El Paso which forced the sheriff's department to end its racial profiling campaign there. The work, which came out of a human rights and racial profiling workshop that HRP held in Austin in April, also led the UN Human Rights Committee to include the issues of border militarization and racial profiling in its Concluding Observations to the United States. • In April 2006, HRP, IRP and NPP attended the Committee Against Torture session in Geneva. The Committee relied heavily on their advocacy and the ACLU’s report, Enduring Abuse: Torture and Cruel Treatment by the United States at Home and Abroad¸ in condemning U.S. torture policies in detention facilities outside the United States as well as in prisons and jails within our own borders.

  14. Using Human Rights to Effect Change: ACLU Success Stories (cont):

  15. General Comments • Purpose: Treaty Bodies use General Comments to interpret and clarify treaty language and obligations of State Parties under the treaties. In some limited ways, General Comments function as the sort of evolutionary jurisprudential interpretation of a particular treaty. • Examples: • CERD General Comment 30: “Based on these general principles, that the States parties to the Convention, as appropriate to their specific circumstances, adopt the following measures: … Remove obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health; 30. Ensure that public educational institutions are open to non-citizens and children of undocumented immigrants residing in the territory of a State party; … 32. Guarantee the equal enjoyment of the right to adequate housing for citizens and non-citizens, especially by avoiding segregation in housing and ensuring that housing agencies refrain from engaging in discriminatory practices; 33. Take measures to eliminate discrimination against non-citizens in relation to working conditions and work requirements, including employment rules and practices with discriminatory purposes or effects; 34. Take effective measures to prevent and redress the serious problems commonly faced by non-citizen workers, in particular by non-citizen domestic workers, including debt bondage, passport retention, illegal confinement, rape and physical assault; 35. Recognize that, while States parties may refuse to offer jobs to non-citizens without a work permit, all individuals are entitled to the enjoyment of labour and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated.” • CERD General Comment 31: “The following should be regarded as indicators of potential causes of racial discrimination: … b) The potential indirect discriminatory effects of certain domestic legislation, particularly legislation on terrorism, immigration, nationality, banning or deportation of non-citizens from a country, as well as legislation that has the effect of penalizing without legitimate grounds certain groups or membership of certain communities. States should seek to eliminate the discriminatory effects of such legislation and in any case to respect the principle of proportionality in its application...”

  16. We need to expand the civil rights struggle to a higher level- to the level of human rights. No one from the outside world can speak out on your behalf as long as your struggle is a civil rights struggle. Civil Rights come within the domestic affairs of this country. All of our African brothers, and our Asian brothers, and our Latin American brothers cannot open their mouths and interfere in the domestic affairs of the United States. And as long as its civil rights, this comes under the jurisdiction of Uncle Sam. When you expand the civil rights struggle to the level of human rights, you can take the case of the Black man in this country before the nations of the UN. Civil Rights mean you are asking Uncle Sam to treat you right. Human rights are something that you were born with. Human rights are your God given rights. Human rights are the rights that are recognized by all nations of this earth. Malcolm X Speech presented in Cleveland, Ohio April 3, 1964

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