II. THE UNITED NATIONS' ANSWER TO RACIAL DISCRIMINATION: INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
A. Brief History of the CERD
In the 1960s, the United Nations (“U.N.”) drafted several Declarations addressing the issue of racial discrimination. On December 14, 1960, the General Assembly of the U.N. passed the Declaration on the Granting of Independence to Colonial Countries and Peoples, condemning the colonization of continents that served as a means to segregate and discriminate against people of color. Three years later, the General Assembly of the U.N. passed the Declaration on the Elimination of All Forms of Racial Discrimination affirming “the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding and respect for the dignity of the human person.” Although the U.N.'s passage of these declarations was admirable, they were nonbinding, so the U.N. drafted the CERD. Like Title VI, the CERD is binding and prohibits government funded racial discrimination. Before the U.N. could adopt the CERD twenty countries that were members of the U.N., member states, had to ratify the CERD. The CERD was adopted by the U.N. on December 21, 1965 and entered into force on January 4, 1969.
Two years after enacting the Civil Rights Act, the United States became a signatory of the CERD in September 1966, making the United States one of the first member states to sign onto the CERD. However, it took the United States twenty-eight years to ratify the CERD. The CERD was not ratified until the Clinton Administration submitted it to the Senate. The Senate ratified the CERD, with their advice and consent, with three reservations: limiting the regulation of [p979] free speech, restricting application of CERD to public institutions, and requiring consent before allowing review by the International Court of Justice. In ratifying the CERD, the Untied States Senate noted that “the Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental conduct,” but this authority did not reach to private conduct. Thus, the United States authority over “public institutions” to prevent discrimination was limited to the regulation “of public conduct that [is] customarily the subject of government regulation.”
Moreover, when ratifying the CERD, some members of the Senate finally admitted the nation's history of discrimination and segregation. In fact, Senator Pell noted that it was important for the United States to ratify the Convention because “[a]s a nation which has gone through its own struggle to overcome segregation and discrimination, we are in a unique position to lead the international effort.” Senator Pell further noted that the ratification of the CERD would allow the United States to work with the Committee on the Elimination of Racial Discrimination (“Committee”) to monitor compliance. The Senator's comments acknowledged both the sordid legacy of racial discrimination in the United States and the Committee's authority to rectify issues of racial discrimination in the United States. The acknowledgement of the past harms of racial discrimination and the promise of eradication were provided not only by the Senator's comments, but also by the language of the CERD. The goals and language of the CERD are similar to those found in Title VI, which prohibit racial segregation and discrimination, offering the prospect of equality for elderly African-Americans relegated to poor quality and unequal nursing homes.
B. Governing Goals and Language of the CERD
“Convinced that the existence of racial barriers is repugnant to the ideals of any human society” and “alarmed by manifestations of racial discrimination still evidenced in some areas of the world and by governmental policies based on racial superiority or hatred,” the U.N. adopted the CERD, which prohibits all forms of discrimination. The term “racial discrimination” is defined as:
[p980] any distinction, exclusion, restriction or preference based on race, colour, 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. Not only does this broad language encompass the laudable goals of human rights, but it also includes the legal principles of equality. The definition noted the significance that everyone regardless of “race, colour, descent or national or ethnic origin” deserves human dignity and equal access to the “fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Moreover, the legal principles of equality are addressed by the prohibition against an action “which has the purpose or effect” of racial discrimination. This language prohibits both intentional and unintentional forms of racial discrimination, such as institutional racism.
To comply with the CERD, member states must eradicate racial discrimination from disparate treatment, disparate impact, and institutional racism. To prevent this discrimination, Article 2(1) of the CERD mandates that member states condemn racial discrimination and “undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.” Furthermore, the CERD states that member states shall:
engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation . . . [and] undertakes not to sponsor, defend or support racial discrimination by any persons or organizations. Hence, the CERD requires member states to put an end to all discrimination committed by public institutions. To ensure compliance [p981] by member states such as the United States, two mechanisms were put into place: procedures to file individual complaints and the creation of a Committee.
The procedure for filing a complaint is found in Article 14 of the CERD. It provides that individuals and groups “claiming to be the victim of racial discrimination to lodge a complaint with the Committee.” Article 8 of the CERD established a Committee to enforce the requirements of the CERD. The Committee, consisting of eighteen members, is charged with reviewing complaints of the continuation of racial discrimination because of a member state's violation of the CERD. The Committee's method by which it rectifies complaints is discussed in further detail later, but, if the case is resolved in favor of the complaining party, remedies available are a change of the law and reparations for damages suffered. Before the Committee becomes involved, individuals must be able to assert a claim of racial discrimination by a member state in violation of the CERD that cannot be eliminated through domestic means.
An example of a country's violation of the CERD is the United States' failure to eliminate the racial discrimination committed by state and federally funded nursing homes participating in the long term care system. Initially, the United States acted in concert with entities to racially segregate and discriminate. In the 1960s, the United States gained a conscience and enacted several laws banning racial segregation and discrimination. Unfortunately, the promise never materialized, and now the government has returned to its position of funding nursing homes that actively discriminate against African-Americans. Thus, African-Americans are right back where they started, residing in segregated substandard nursing homes. One way to resolve this issue is by filing a complaint with the Committee for the United States violation of the CERD for failing to enforce Title VI.
