Black Lives Matter, the USA and the UN Convention against Racial Discrimination

[Yusra Suedi is a PhD Candidate in Public International Law at the University of Geneva, where she teaches a course on United Nations diplomacy. Twitter: @Yusra_Suedi.]

The killing of George Floyd, a 46-year-old African American man, on 25 May 2020 in Minneapolis by the police while in custody, has triggered solidarity protests all over the world. While protesting, electing different leaders, and national measures such as reforming the domestic criminal justice system are ways to address the issue on the domestic level, this post seeks to explore how also international human rights mechanisms could play a role in pressuring the United States to comply with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

The ICERD is a convention committing its State Parties to the elimination of all forms of racial discrimination. The USA signed it in 1966 and ratified it in 1994. This means that the United States is obliged, inter alia, to uphold its duties to condemn racial discrimination (Article 2(1)), ensure that national and local public authorities shall not practice racial discrimination against persons or groups of persons (Article 2(1)(a)) and take effective measures to review national and local policies (Article 2(1)(c)). The USA is also required to guarantee the right to equal treatment before tribunals and other judicial organs (Article 5(a)) and the protection of people against violence (Article 5(b)). Finally, it has bound itself to assure to everyone within its jurisdiction effective protection and judicial and institutional remedies against any acts of racial discrimination (Article 6).

The United States has submitted reservations to the ICERD, namely that no obligation therein will restrict the individual freedom of speech, expression and association on one hand, and the individual privacy and freedom from governmental interference in private conduct on the other hand. Neither of these reservations impact the clauses that the USA may have violated in recent history. I will first examine the Convention’s reporting procedure, then I will look to ways in which individuals or groups of individuals may take action, and lastly I will consider potential actions that could be taken by other governments.

First, the USA is bound to submit a report every two years to the Committee on the Elimination of Racial Discrimination (a body of independent experts verifying State Parties’ compliance with the ICERD), explaining how it has implemented the provisions in the ICERD. The Committee examines the report and provides recommendations known as “concluding observations”. The last report submitted by the USA is reported on the OHCHR’s website to be in 2014 (it is apparently yet to submit the report due on 20 November 2017). In this report, the US government, among other things, described the ways in which federal agencies actively enforce federal non-discrimination laws against public authorities and institutions at all levels of government (para. 19), explained how it had worked to prohibit and end racial discrimination through legislation (para. 26) and measures taken to prevent racial discrimination before tribunals and judicial organs (paras. 59-86) – particularly in the criminal justice system (para. 65). In the CERD’s concluding observations to this report, it expressed concern for gun violence disproportionately affecting African Americans in particular, and urged the US to take effective legislative and policy measures to reduce this practice (for example by increasing transparency concerning gun use, expanding background checks and prohibiting carrying handguns in public venues) (para. 16).

The Committee also expressed concern at police brutality and “excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on African Americans” (para. 17). It implored the US to ensure that perpetrators are thoroughly investigated, prosecuted and punished, that investigations are re-opened when new evidence becomes available and that victims are provided with adequate compensation. It also exhorted the US to intensify its efforts to prevent police brutality, improve on the reporting of such cases and follow up to the Committee in its next report. Finally, the Committee commented on the criminal justice system, expressing concern “that members of racial and ethnic minorities, particularly African Americans, continue to be disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole” (para. 20). It called upon the US to, inter alia, amend relevant laws and policies and implement effective national strategies. These concluding observations remain recommendations that the US may choose to not take seriously with few consequent repercussions to date.

Next, the USA has declared that the ICERD provisions are not self-executing, meaning that they do not create independent cause of action in US courts without legislative implementation. However, the United Nations allows for an injured individual or group of individuals to directly file a complaint to the Treaty Bodies such as the Committee on the Elimination of Racial Discrimination. According to Article 14(1) ICERD, this is upon the condition that a State Party declares that it recognizes the competence of the Committee to receive and consider such communications, but the USA has made no such declaration.

However, victims of racial discrimination may seize the Working Group of Experts on People of African Descent (WGEPA). The WGEPA is entrusted by the Human Rights Council to closely study the issue of racial discrimination against people of African descent by undertaking country visits, and reports to the Council annually. The 2018 report (A/HRC/39/69) of the WGEPA commented on the administration of justice, including impunity for police violence and killing of unarmed people of African descent (para. 27), and the WGEPA has specifically carried out fact-finding missions to examine the situation in the USA (here, here and here). If an individual is a victim of an individual case or a pattern of a human rights violations related to the WGEPA’s mandate that has already occurred, is ongoing, or has a high risk of occurring and that affects a particular group or community, he or she can submit a completed complaint form to the WGEPA to “intervene directly with [the relevant government] by means of letters which include urgent appeals and other communications” (see here). This may also be done if the concerned individuals in question feel that certain existing legislation, policy or practices are not compatible with international human rights standards.

Aside from individuals holding the US accountable before the UN, other States can do this in two ways. First, the ICERD has an inter-State communications mechanism allowing for a State to formally communicate its grievances to another State that has allegedly violated the ICERD. Articles 11-13 ICERD lay out the procedure, which applies to all State parties to the ICERD without the need for a declaration of consent to proceed. Such a practice was only exercised for the first time in 2018 where three inter-State communications were submitted: State of Qatar vs. Kingdom of Saudi Arabia, State of Qatar vs. United Arab Emirates and State of Palestine vs. State of Israel (see here). The Committee initially decided to not take decisions due to “the legal complexity of the issues broached and a lack of resources” (see here). However, the last published update in 2019 states that jurisdiction and admissibility for the three cases have been accepted and that they are ongoing. If a State Party of the ICERD would be willing to submit such a communication to the Committee against the US, and if the jurisdiction and admissibility of such a case were to be accepted, this could be a viable option to hold it accountable.

An alternative means to instigate an inter-State dispute over the US’s compliance with the ICERD is provided for in its Article 22: if negotiation has failed, and if no other mode of settlement has been proposed, a dispute on the interpretation and application of the ICERD may be referred to the International Court of Justice. However, the US submitted a reservation upon ratification that its specific consent would be required in each case before the World Court, and it is doubtful that it would accept. Further, it may be challenging to prove that State Party’s legal interest, and the success of this method would also hinge upon the existence of a dispute between the US and the other State Party. In the recent Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) the Court confirmed the existence of a dispute in its Provisional Measures Order (23 January 2020) defined as a “disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other”, accepting the possibilities of the latter being established by inference and of the accused State failing to respond to a claim by the State Applicant where a response would be called for (paras. 20-31). Any contending State would therefore have to meet such requirements.

Lastly, the USA is scheduled to be reviewed by the Universal Periodic Review (UPR) of the Human Rights Council on 9 November 2020. In its last Review in 2015, the US acknowledged the trend of police-involved shootings of African Americans and racial discrimination in the justice system (paras. 11-14). Many States expressed concern at practices of racial discrimination especially in its justice system (paras. 29, 53, 76, 80, 122, 150) and made recommendations (for example, paras. 176.90-94, 176.118-124, 176.130-137). Its next UPR Review will be another opportunity for States and civil society members to pressure it to do better.