The United States’ ICERD Reservations
State parties may attach reservations, understandings, and declarations (RUDs) to a treaty at the time of ratification. RUDs modify or clarify a treaty’s text or alter its legal effect for that ratifying State. But RUDs that are incompatible with a treaty’s object and purpose are deemed impermissible.
The United States ratified ICERD subject to several RUDs. In ratifying ICERD, the United States said it would not accept any obligation under ICERD to restrict U.S. freedom of speech, expression, and association. The United States further asserted that, to the extent ICERD seeks to regulate private conduct in a stricter manner than what already exists under U.S. law, the United States would not be obliged to take any such measures. These RUDs reflect a posture that U.S. laws prevail over multilateral, negotiated international human rights treaties, even if the treaty in question provides broader protections against racial discrimination.
This sentiment is emphasized in the United States’ final ICERD RUD, which provides that the treaty is non-self- executing. This final RUD prevents litigants from bringing independent ICERD claims into U.S. courts. A U.S. citizen cannot bring a claim into a U.S. court solely alleging that ICERD provisions have been violated, unless that claim also implicates a U.S. law. While self-executing treaties are equal to domestic law and enforceable in U.S. courts, non-self-executing RUDs often are perceived as the biggest obstacle to a treaty’s effectiveness in the United States because the provisions of that treaty cannot be enforced, on its own terms, domestically.
Of course, international human rights law must be balanced with sovereignty principles. ICERD provisions impact State Parties’ authority over their domestic affairs. ICERD Article 4 mandates, for example, that State Parties make hate speech and the dissemination of racist materials illegal. Free speech is a well-settled U.S. constitutional principle and considered one of the country’s most prized civil liberties. However, racism, hatred, racial superiority, and state-sponsored racial subjugation are also among the country’s well-settled practices. The U.S. RUD stating it does not accept any obligation under Article 4 to restrict freedom of speech plainly confirms which side of the balance the United States values more. Protecting speech—namely hate speech—is more sacred to the United States than abolishing the evils of racism. This does not reflect a sincere commitment to uphold ICERD’s primary purpose of eliminating racial discrimination.
If a country aims to enforce only its own laws, why join ICERD at all? Reservations that reasonably modify a treaty’s text are one thing, but completely usurping the law of a treaty for a State’s own domestic laws, arguably, defeats the purpose of ratifying an international treaty.
The nullifying effect of the United States’ RUDs could be mitigated by fully implementing ICERD into the United States’ domestic legal framework. Implementing legislation will give ICERD legal effect in the United States and provide for domestic enforcement of the treaty. ICERD parties agree to end racial discrimination, through all appropriate means, including legislation. So, ICERD parties are encouraged to enact legislation implementing the treaty domestically. ICERD requires that State Parties review their national and local policies and revise or repeal laws that have the effect of advancing racial discrimination.
Despite repeated requests, the United States has still not enacted legislation allowing for ICERD to have legal effect in the United States. The United States claimed that its laws already provide comprehensive protections against discriminatory conduct. The United States further explained that racial discrimination can be addressed both by U.S. constitutional and statutory law, including the Equal Protection Clause and the Civil Rights Act of 1964.
But one reason for the ICERD Committee’s insistence that the United States enact legislation implementing ICERD lies in how racial discrimination is defined. Racial discrimination under ICERD does not require proof of discriminatory intent; if a policy’s impact is disparate, then it is discrimination under ICERD. Unlike ICERD, U.S. law, generally, requires that racial discrimination claims prove discriminatory intent. Disparate impact often will not suffice. Consequently, the burden of proof for legal claims of discrimination in the United States is difficult to satisfy, making remedies for racial discrimination rare.
Given that ICERD offers broader protections against racial discrimination, the U.S. government should enact legislation to fully implement the treaty domestically.
Protecting speech— namely hate speech—is more sacred to the United States than abolishing the evils of racism.
ICERD permits individuals to file a complaint against a State Party after local remedies have been exhausted, if the State recognizes the competence of the ICERD Committee to hear the case. Individual complaints are optional, and States must agree to submit themselves to such claims. The Russian Federation, South Africa, France, Brazil, Germany, and Hungary all permit the Committee to hear individual complaints.
The United States has not agreed to do so. The United States argues that U.S. law already provides adequate opportunities to remedy racial discrimination. But U.S. laws do not go as far as ICERD mandates. Permitting the ICERD Committee to hear individual complaints will provide marginalized individuals with opportunities to voice how unaddressed racial and ethnic discrimination has affected them. As ICERD requires that local remedies be exhausted first, U.S. judicial means and administrative agencies must still be the routes of first resort. The ICERD complaint mechanism will only be used where U.S. racial discrimination laws fall short. To fully embrace ICERD, the United States should recognize the Committee’s competence to hear individual complaints.
U.S. Periodic Reports
Under ICERD, all State Parties must submit reports on the legislative, judicial, administrative, and other measures they’ve adopted to give effect to ICERD. States issue their first report one year after joining ICERD and every two years thereafter. The reporting process gives the ICERD Committee the opportunity to examine implementation and compliance. It also allows the U.N., other State Parties, and the international community to examine a State’s laws, to commend any progress made and to recommend corrective action where necessary. When States fail to submit their reports, this compliance monitoring process is undercut.
The United States has routinely submitted its periodic reports late. The most recent reports were due in 2017, and the United States still has not delivered these reports.
The rich and enduring legacy of state-sponsored discrimination that has burdened U.S. citizens warrants the United States’ unwavering compliance with its ICERD obligations. Yet, the United States has failed to fully endorse and implement ICERD’s goals. Given the nullifying RUDs, the failure to enact implementing legislation, the failure to allow for individual complaints, and the failure to deliver timely reports work counter to the goals of ICERD and prevent international oversight on the United States’ continuing struggles with racial discrimination.
The author would like to thank Professor Destiny Peery for her generous contributions.