After CERD Review, the Work to Eliminate Racial Discrimination Must Continue

Human Rights Resources, Leadership Conference Resources 08.18.22

Two years after passage of the Civil Rights Act of 1964, the United States signed a human rights treaty — the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) — to further the goal of racial equity. In a message to Congress the following year, President Johnson noted that “Our signature reflects this Government’s commitment to promote the cause of human rights and the end of racial discrimination.”

It would take nearly 30 more years, however, for the U.S. Senate to finally ratify CERD. Appearing before the Senate Foreign Relations Committee in 1994, Wade Henderson, then-director of the NAACP Washington Bureau, urged senators to ratify the treaty and said that “while progress in eliminating racial discrimination indeed has been made, there is a great deal yet to be done.”

Last week, the U.N. committee that reviews compliance with CERD met in Geneva to examine our nation’s record of implementing the treaty and living up to the human rights promise we made when the United States ratified CERD.

The delegation that the U.S. government sent to Geneva was co-chaired by the Hon. Michele Taylor, U.S. ambassador to the U.N. Human Rights Council, and Desirée Cormier Smith, special representative for racial equity and justice at the State Department — the first-ever appointment to this position. The high-level nature of the U.S. delegation, including representatives from several federal agencies, demonstrated how seriously the government took the review. The delegation also included the mayor of Atlanta, Andre Dickens, and Damon Brown of the California Department of Justice — emphasizing the importance of state and local civil rights enforcement. Notably absent from the U.S. delegation was a representative of the White House Domestic Policy Council (DPC). As the DPC works to fulfill President Biden’s commitment to advancing equity for all, implementation of CERD-related policies will be critical, making its presence in Geneva important and its absence a missed opportunity.

While this delegation represented the United States before the CERD committee during its official review, the vibrant non-governmental organization (NGO) community in the United States is an important partner in the CERD review process. Through the use of shadow reports and personal testimony by affected individuals, which focus on specific problems in addressing racial discrimination, as well as providing recommendations for future governmental action, NGOs shine a light on governmental failures and inaction.

This year’s NGO delegation included other national organizations like The Leadership Conference on Civil and Human Rights, ACLU, Southern Poverty Law Center (SPLC), Human Rights Watch, and the Center for Constitutional Rights, in addition to substantial Indigenous representation of tribal nations and more local representatives of issues that had previously received scant attention under CERD. Henderson, who would serve for more than 20 years as our president and CEO, represented The Leadership Conference in Geneva — joined by staff members June Zeitlin and Nadia Aziz — and attended meetings, spoke with the U.S. delegation and other members of civil society, and highlighted the recommendations outlined in a shadow report we submitted ahead of the review. Our report recognizes that while the Biden administration has taken important steps to reverse some of the most egregious human rights violations of the Trump administration, more still needs to be done to bring the United States into compliance with its CERD obligations.

While in Geneva, NGOs discussed the treatment of Black migrants, environmental justice issues from “cancer alley” in Louisiana, Black and Brown child welfare issues, reproductive rights concerns for Black and Brown people in the wake of the Dobbs decision, and significant concerns about escalating gun violence disparities and the criminal-legal system — with actual representatives of individuals who had been wrongly sentenced under our criminal laws. Issues of rising hate crime violence against Black, Brown, and Asian American people received extended focus, and the issue of voting rights, the January 6th insurrection, and the future of American democracy was woven throughout the discussion.

The issue of reparations for the descendants of enslavement in the United States experienced a breakthrough moment this year, particularly in linking current challenges experienced by Black Americans — in education, housing, wealth, and the criminal-legal system — to the issue of slavery. For representatives of previously unaddressed issues, this CERD review constituted a major policy accomplishment by bringing these issues to the table for the first time.

During a meeting of the U.S. delegation with representatives of the NGO community, which lasted four hours, the delegation heard the testimony of a Black mother who had lost her newborn to the state welfare system — coupled with a question of how such an experience could occur in a country that professed love and caring for children.

This moment shifted the entire nature of the meeting, with NGO representatives giving very personal examples of the pain and anguish they’ve endured for a variety of harms by the state. This included hearing from Terrance Winn, a formerly incarcerated man from Louisiana, who joined the SPLC delegation to speak about conditions in U.S. prisons and the toll on incarcerated people subjected to solitary confinement. According to Henderson, “The vulnerability of the speakers and the horrific nature of the examples brought many participants, both delegation officials and NGOs, to tears. It was a powerful moment, unlike anything previously seen at a CERD review!” The NGO-delegation meetings are standard, though often largely performative. This year was different.

The following two days were spent with the CERD committee questioning the U.S. delegation based on the reports and testimony that we had provided. The CERD task force, which focused specifically on U.S. conditions, had done their homework in reviewing our materials and preparing tough questions for U.S. representatives. For example, one question from those representing Black migrants focused on the contrast in treatment between migrants from Ukraine and those from Haiti and Cameroon. Another question dove deeply into the U.S. position on reparations and secured a statement from the National Security Council representative in the meeting with NGOs, who responded that President Biden supported a commission study of whether reparations are warranted, although there was no official declaration on that point.

For the first time since the last CERD review of U.S. compliance in 2014, the United States was called to account for its failure to address meaningfully the problems of racial discrimination on American soil. And though the Trump administration failed to file any reports and violated the United States’ obligations to comply with the treaty, there are encouraging signs that this CERD review process could lead to actual change. Additional engagement with the Biden administration on some of the issues that emerged during the CERD review will be essential to institutionalizing some of the change we seek.

As we await the CERD committee’s concluding observations from the review — expected on August 30 — The Leadership Conference continues to call on the Biden administration to create a stable federal body or structure focused on the implementation of human rights treaty obligations. The administration should establish an interagency mechanism coordinated by the White House through the Domestic Policy Council and the National Security Council, Department of State, and Department of Justice. This mechanism should be tasked with ensuring, in consultation with civil society, that domestic agencies swiftly implement recommendations from regional and international human rights bodies. We also strongly recommend the creation of a national plan of action to address racial discrimination and fully implement CERD. And we urge the administration to take concrete steps to examine the need for the establishment of a National Human Rights Institution, as most other countries have done.

Additionally, the administration should issue an executive order establishing a commission to study reparations proposals for African Americans. While it was important that President Biden signed legislation last year to make Juneteenth a federal holiday, a commission to study reparations proposals would be another meaningful response to the institutional racism endured by Black people and will finally acknowledge how pervasive the impact of slavery is on almost every institution and structure in the United States today.

Civil and human rights must be measured by a single yardstick — both at home and abroad — treating human rights violations in the United States with the same standards and urgency that the United States applies to other countries.

Decades after the nation committed to eliminating racial discrimination by ratifying CERD, it’s time for the United States to finally comply with the treaty, live up to our human rights promises, and address root causes of systemic racism that persist. And as we work toward our collective goal of building a just and inclusive nation for all, we hope that the shadow report we submitted to the CERD committee will be useful to policymakers, advocates, and all who are fighting to eliminate racial discrimination in America.

Read more shadow reports submitted to the CERD committee: