II. International Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted in 1965 by unanimous vote of the U.N. General Assembly. Until ratification of the Convention on the Rights of the Child in 1993, CERD was the most widely ratified of the core human rights treaties. The Convention was signed on behalf of the United States on September 28, 1966. It was not transmitted to the U.S. Senate for advice and consent to ratification for almost twelve years (February 23, 1978). The U.S. Senate resisted its adoption and ratification; consequently, the treaty was not ratified for another sixteen years. Thus, it was almost thirty years (1994) after its adoption by the United Nations before the U.S. Senate gave its advice and consent to ratify CERD.
CERD prohibits racial discrimination, which it broadly defines as any distinction based on “race, colour, descent, or national or ethnic origin” that has the purpose or effect of impairing human rights and fundamental freedoms. CERD requires nations that have ratified CERD to review, amend, or nullify laws and practices that have the purpose or effect of discriminating on the basis of race. However, the United States ratified CERD with three reservations, an understanding, and a declaration that qualified the extent to which the United States would adhere to the treaty. Nevertheless, under the reporting procedure of CERD's Article 9, the United States agreed to submit reports every two years, with the first report having been due in 1995. The United States did not submit a report until 2000.
Under CERD, a committee (CERD Committee) reviews the reports and determines whether adequate legal protections for groups that have experienced racial discrimination have been implemented. It also examines evidence of de facto discrimination. Although not legally binding, the CERD Committee makes concluding observations about the reports and may make suggestions on how the reporting states could improve their application of CERD.
CERD procedure permits interested nongovernmental organizations to submit shadow reports on a state's compliance to the Convention. Numerous organizations submitted shadow reports, including the Allied Research Center, which through its Transnational Racial Justice Initiative issued a report entitled “The Persistence of White Privilege and Institutional Racism in U.S. Policy: A Report on U.S. Government Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination” (White Privilege Shadow Report). The White Privilege Shadow Report included an Introduction by Makani Themba-Nixon, Editor for the Transnational Racial Justice Initiative. In her introduction, Ms. Themba-Nixon noted a number of problems with the initial U.S. report and provided a summary of issues relating to U.S. noncompliance with the Convention. The White Privilege Shadow Report also included discussions of Welfare Policy by Julie Quiroz-Martinez of the Center for Third World Organizing, Health Policy by Vernellia R. Randall of The University of Dayton School of Law, Education Policy by Expose Racism and Advance School Excellence (ERASE Project) of the Applied Research Center, and Land Use Policy by Gavin Kearney of the Institute on Race and Poverty.
This Article discusses disparity in health status, institutional discrimination in health care, and inadequate legal enforcement, which point to serious human rights violations under CERD. This Article then makes specific recommendations to the CERD Committee and includes several appendices, including “Concluding Observations of the CERD Committee.” The basic thesis of this Article is that persistent discrimination in U.S. health care contributes to continuing health disparities, which is a violation of the U.S. obligations under CERD.