Hon. Alcee L. Hastings, Chairman

Volume: 40

Number: 33

Hon. Benjamin L. Cardin, Co-Chairman
December 17, 2008


By Mischa E. Thompson, Policy Advisor

Moving into the 21st century, racism and discrimination continue to be a problem throughout the fifty-six European, North American, and Central Asian countries that make up the Organization for Security and Cooperation in Europe (OSCE), including in the United States. Recent reports by the OSCE, European Union’s Fundamental Rights Agency (2008, 2007), and European Network Against Racism have found that racial minorities and increasingly migrants are the targets of hate crimes and racial/ethnic profiling, in addition to experiencing discrimination in employment, housing, education, and other areas. Political parties espousing anti-migrant and racist positions are also on the rise, with the potential to undermine current efforts to implement tolerance and nondiscrimination initiatives throughout the region.

Efforts to address these problems over the years have resulted in the development of multi-lateral instruments to stem the tide of racial discrimination. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is often considered a premier international instrument in this area. Adopted by the United Nations in 1965 and entering force in 1969, over 173 countries including the United States, have agreed to have their government policies reviewed to determine if they create or perpetuate racial discrimination. ICERD 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.” According to the treaty, countries are required to amend or repeal laws and regulations deemed to be discriminatory and are allowed to introduce positive measures such as affirmative action when necessary. As such, countries are obligated to protect against inequality and discrimination in the enjoyment of human rights, including in the areas of education, housing, criminal justice, health, voting, labor, etc.

While the 1975 Helsinki Final Act requires its members to respect human rights and fundamental freedoms “without distinction as to race, sex, language or religion,” no review mechanism comparable to the ICERD currently exists within the OSCE. In recent years, the OSCE participating States have urged ratification of the ICERD (e.g., Copenhagen 1990, Helsinki 1992, Maastricht 2003), adopted complimentary initiatives such as the Annual Hate Crimes Report, and conducted consultations and other activities within the United Nations on relevant initiatives. The ICERD and its implementing committee, the Committee on the Elimination of Racial Discrimination (CERD), therefore continue to remain a primary resource in outlining and determining the success of OSCE countries’ efforts to eliminate racial discrimination. For this reason, the 2008 CERD review of the United States and the status of U.S. efforts to combat racial discrimination were widely followed.

From February 18 to March 7, 2008 the Committee on the Elimination of Racial Discrimination (CERD) held its seventy-second session in Geneva, Switzerland. The Committee of eighteen independent experts, including a U.S. representative, is charged with periodically reviewing the performance of the 173 countries that have signed and ratified ICERD. During the seventy-second session, the Committee reviewed anti-discrimination efforts undertaken by the Governments of the United States, Fiji, Italy, Belgium, Nicaragua, Moldova, and the Dominican Republic. The United States appeared before the Committee on February 22 and 23 after having submitted a report in April 2007 on its efforts to eliminate racial discrimination after last appearing before the Committee in 2001. Over four hundred U.S. non-government organizations (NGOs) also compiled and submitted a “Shadow Report” to the Committee, which provided supplementary independent information in addition to the government perspective.

Twenty-three persons made up the diverse high-level U.S. delegation, headed by Ambassador Warren Tichenor, Permanent Representative of the United States to the United Nations in Geneva. The delegation also included: Grace Chung Becker, Acting Assistant Attorney General in the Civil Rights Division of the Department of Justice, and Ralph Boyd, a former member of the U.N. Committee. Other members of the delegation were from the Departments of Interior, Justice, State, Homeland Security, and Equal Employment Opportunity Commission. For the first time more than one hundred U.S. NGO representatives also attended the session as a “shadow” delegation.

The review began with the United States noting the continuing problem and challenges of combating racial discrimination, but disagreeing with the Committee’s views on causes and solutions. Ambassador Tichenor stated that, “the United States supported the elimination of racial discrimination at home and abroad [...] and had made significant progress in improving race relations in the past [and] continued to work actively to eliminate racial and ethnic discrimination. However, challenges still existed, and a great deal of work remained to be done.” The United States then went on to argue that the causes of continuing racial disparities were poverty and other socio-economic variables, including poor choices made by minorities and discriminatory actions by non-state actors, as opposed to institutionalized practices stemming from past unjust government policies (e.g., slavery, segregation). The United States further argued that it should not bare the primary responsibility for addressing racial disparities because it was not solely responsible for creating the current situation. To bolster this argument, the United States also argued that the Committee’s interpretation of the intent of the ICERD was incorrect in terms of the government needing to play the lead role in combating racial discrimination and disparities. (Find excerpts from the U.S. statements at the end of this report.)

This line of argument caused the Committee to question whether the United States still possessed the political will to comply with its ICERD commitments. Indeed, much of the proceedings involved Committee members reiterating the commitments ICERD countries have undertaken as signatories, including to augment laws and regulations which “have the effect of creating or perpetuating racial discrimination wherever it exists.” Confusion was expressed as to why the U.S. government had supported efforts to end affirmative action in schools, while simultaneously highlighting the existence of racial disparities in all sectors of U.S. society. Further puzzlement was displayed as to why the United States was arguing against playing a lead role in combating discrimination, while at the same time introducing widely acclaimed new initiatives to combat discrimination such as the US Equal Employment Opportunity Commission’s E-RACE Initiative and National Partnership for Action to End Health Disparities. The Committee also questioned the status of and anticipated plans for other U.S. efforts to address de facto discrimination, manifested by racial profiling, lack of equal access to quality housing, healthcare, and education, the failure to preserve Native American land rights and return Hurricane Katrina victims to their homes.

Committee members also expressed disappointment in the United States. Several Committee members noted that they viewed the U.S. civil rights movement and resulting policies to address past inequities such as affirmative action, as models for policies they were considering and/or using in their own countries to address human rights concerns stemming from inequities and historical injustices. In some cases, these policies were developed following consultations with the U.S. government. Indeed, the Colombian Committee member remarked that he had participated in a visit to the United States as part of an Afro-Colombian delegation invited to view U.S. programs to combat racial discrimination.

Members of the Committee also requested that the United States participate in the 2009 Durban Review Conference, a follow-up to the 2001 World Conference Against Racism, as a means for continuing the conversation on eliminating racial discrimination. The United States responded that it had withdrawn negotiators from the first Durban Conference “because of pervasive anti-Semitism in its discussions” and would make a decision regarding participation at a later date.

A summary of the U.S. Review before the Committee and Concluding Observations of the Committee included recommendations to the United States in areas ranging from affirmative action and immigration to voter disenfranchisement and the rights of Native Americans and tribal peoples. This includes a request for an interim report due in February 2009 on how the United States has implemented the Committee’s recommendations regarding: 1) racial profiling and counterterrorism efforts impacting Arab, Muslim, South Asian and others, 2) protecting Western Shoshone lands, 3) efforts to return displaced Hurricane Katrina victims, 4) decreasing minority youth imprisonment rates, and 5) organizing training programs and other initiatives to make government officials and parties at the state and local levels aware of U.S. responsibilities under the ICERD. This last point was repeatedly raised by the civil society shadow delegation. In particular they were concerned by “U.S. exceptionalism” – or the perception that United States tells other nations to abide by international human rights laws, but refuses to comply with those laws itself. The Committee also called for greater consultation and cooperation between the U.S. government and civil society in preparation of its next report due in November 2011 following concerns that civil society was not sufficiently consulted during the drafting of the 2007 report.

Also, of relevance in addressing global efforts to eradicate racial discrimination was the seventh annual meeting of the United Nations Working Group on People of African Descent (WGPAD). Formed in April 2002, the Working Group studies and proposes solutions to the problems of racial discrimination faced by people of African descent living in the Diaspora, with a focus on improving their human rights situation. The Working Group met for its seventh Annual Session on January 14 to 18th, where it reviewed its proceedings of the past seven years on thematic issues that impact the experiences of persons of African descent in the following areas: administration of justice, media, equal access to quality education, employment, health, housing, participation in political, economic, and social sectors, racial profiling, and the empowerment of women of African descent. The WGPAD seventh Annual Session focused on the development of recommendations based upon these past sessions as a UN requirement in preparation for the 2009 Durban Review Conference. The United States participated as an Observer at the meeting. The Final Recommendations included calls for countries to: develop and/or adopt national action plans and monitoring bodies to combat racism and assist victims, address racial profiling and other disparities in the criminal justice system, introduce socio-economic data collection methods that include African descendants, counter negative media stereotypes, develop a best practices report and index on racial equality, and create a fund to support NGO participation in future WGPAD activities and meetings. The next WGPAD meeting is scheduled for January 12-14th and will focus on youth.

Within the OSCE context, the WGPAD holds special importance as the only multilateral entity focused on the human rights situation of the more than five million persons that make up the African descendant or Black European population. In recent years, partially as a result of their high visibility in European countries, Blacks have increasingly become the targets of hate crimes and experienced discrimination in education, employment, housing, and other sectors. Additionally, Blacks are often the targets of anti-immigrant campaigns, including racial profiling, regardless of their citizenship (see also U.S. Helsinki Commission Hearing The State of (In)visible Black Europe: Race, Rights, and Politics).

Initiatives such as the CERD and WGPAD have been critical to maintaining a global focus on countries’ efforts to monitor and combat racial discrimination in line with their human rights commitments. Additionally, they compliment OSCE efforts in this area such as this year’s OSCE Supplementary Meetings in Vienna on Roma and national institutions to fight discrimination against minorities and migrants. Because of the role promoting equality and non-discrimination plays in the protection of human rights and ensuring peace and security in the OSCE region, the U.S. Helsinki Commission has also increased its focus in this area (see specific activities below).

U.S. Helsinki Commission Related Activities during the 110th Congress

25 SEPT 2008 Hastings Urges Increased Support for Combating Racism and Discrimination against Blacks and Other Minorities in Europe (Press Release/Resolution)

17 JULY 2008 Racism and Xenophobia: The Role of Governments in Addressing Continuing Challenges (Article)

16 JULY 2008 Racism in the 21st Century: Understanding Global Challenges and Implementing Solutions (Hearing)

15 JULY 2008 Italian Fingerprinting Targeting Romani Communities Triggers Protests; OSCE Pledges Fact-Finding (Article)

13 JUNE 2008 Fighting Anti-Muslim Discrimination (Briefing)

29 MAY 2008 Hastings Remarks – OSCE Supplementary Human Dimension Meeting on National Institutions against Discrimination in Combating Racism and Xenophobia

15 MAY 2008 Hate in the Information Age (Briefing)

9 MAY 2008 Los Angeles: The Regional Impacts and Opportunities of Migration (Hearing)

29 APRIL 2008 The State of (In)visible Black Europe: Race, Rights, and Politics (Hearing)

7 MAR 2008 Helsinki Co-Chairs Hastings and Cardin Call for US to Step Up Efforts to End Racial Discrimination (Press Release)

Recognizing the enduring value of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) as a cornerstone of global efforts to combat racial discrimination and uphold human rights, and for other purposes (Resolution)

7 FEB 2008 Taking Stock: Combating Anti-Semitism in the OSCE Region (Part 2) (Hearing)

Taking Stock: Combating Anti-Semitism in the OSCE Region (Hearing)

3 DEC 2007 Continuing the Fight: Combating Intolerance and Discrimination against Muslims (Article)

6 NOV 2007 Combating Hate Crimes and Discrimination in the OSCE (Briefing)

13 AUG 2007 Sustaining the fight: Combating Anti-Semitism and other forms of intolerance within the OSCE (Article)

7 JUNE 2007 Hastings Opening Session Remarks – OSCE High Level Conference on Combating Discrimination and Promoting Mutual Respect and Understanding, Bucharest, Romania

Hastings Session 4 Remarks – OSCE High Level Conference on Combating Discrimination and Promoting Mutual Respect and Understanding, Bucharest, Romania

Related Articles, Reports, and Events (in order as mentioned in article):

Hate Crimes in the OSCE Region – Incidents and Responses (2008)

European Union Agency for Fundamental Rights Annual Report (2008 and 2007) 

European Network Against Racism Shadow Reports on Racism in Europe (2008)

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

CERD 72nd Session (Feb 18- March 7, 2008)

U.S. Government Committee on the Elimination of Racial Discrimination (CERD) Report

U.S. NGOs Shadow Report

US Equal Employment Opportunity Commission’s E-RACE Initiative

National Partnership for Action to End Health Disparities

2009 Durban Review Conference

United Nations Summary of U.S. CERD Review

CERD U.S. Concluding Observations

UN Working Group of Experts on People of African Descent

OSCE Supplementary Human Dimension Meeting on Sustainable Policies for Roma and Sinti Integration

OSCE Supplementary Human Dimension Meeting on National Institutions against Discrimination in Combating Racism and Xenophobia

Excerpts from statements made by the U.S. delegation to the CERD.

“It is important to distinguish between those instances where disparate outcomes are caused by racial discrimination, and those instances where disparities are a consequence of something else (e.g., class, poverty, socioeconomic circumstances, and/or cultural factors [...] situations where there is a simply a correlation between poor outcomes and race, rather than causation. [...] It has consequences regarding who bears primary responsibility for taking the lead on eliminating racial disparities. And if it’s government, it affects the breadth and nature of the tools that government has at its disposal to solve the disparity problem [...] when a poor outcome that correlates with race is caused by actual discrimination, government bears the immediate burden of acting [...] when other factors drive the disparate outcomes [...] individuals and organizations will need to participate to help devise and implement effective solutions” - Ralph Boyd, Private Sector Advisor, Executive Vice President Community Relations, Freddie Mac Chairman and CEO, Freddie Mac Foundation, February 22, 2008

“[Katrina] is an instance where racial minorities bore disproportionately the housing and health care burdens [...] a situation where government alone couldn’t [...] achieve solutions… The results of certain of these public/private partnerships are not final [...] but prospects are promising… The programs provide comprehensive services [...] to progress, from a situation of merely surviving, to a state of being self-sufficient, to eventually putting them on a path that moves them in a direction of having aspirations and even expectations of becoming prosperous.” - Ralph Boyd, Private Sector Advisor, Executive Vice President Community Relations, Freddie Mac Chairman and CEO, Freddie Mac Foundation, February 22, 2008

“Evidence for intentional racial discrimination is equivocal; some studies show effects of the race of the victim, but others show none [...] With regard to the racial dimension of life in prison without parole, I reiterate that disparate impacts are not per se evidence of racial discrimination. That is, there is no proof of causation that life in prison without parole is imposed on juveniles because of their race.” - Laurence Rothenberg, Deputy Assistant Attorney General for Legal Policy, Department of Justice, February 22, 2008

“[...] the debate should not shift from a focus on victims and the communities devastated by crack to a focus on how the law punishes those who commit serious crimes. [...] The success we are experiencing in some of our most fragile, formerly crack-ravaged communities will be seriously interrupted if these communities are forced to absorb a disproportionate number of convicted felons, who are statistically among the most likely persons to re-offend.” - Laurence Rothenberg, Deputy Assistant Attorney General for Legal Policy, Department of Justice, February 22, 2008

“[...] the United States reiterates its view that decisions concerning when special measures are warranted and what type of measures are left to the judgment and discretion of each State Party. The U.S. position is that special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection may or may not in themselves be race-based.” - Laurence Rothenberg, Deputy Assistant Attorney General for Legal Policy, Department of Justice, February 22, 2008

“Incarceration rates are ‘possible indicators’ of racial discrimination, they are not proof of such discrimination. Many other factors contribute, if not cause, such disparities. [...] There are limits to the ability of the government to address some of the causes of disparate outcomes, which require efforts at all levels of society. [...] Although there is, no doubt, racism to be found among certain individual actors in the U.S. criminal justice system, the overarching apparent disparate impact is more likely the result of what Harvard sociologist William Julius Wilson calls ‘structural’ causes such as underlying social, economic, and cultural factors, as well as what he labeled ‘behavioral’ factors – behavioral choices by the persons involved.” - Laurence Rothenberg, Deputy Assistant Attorney General for Legal Policy, Department of Justice, February 22, 2008


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