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 Appendix C - Selected Paragraphs from the Summary Record of the 1475th Meeting: United States of America. 22/08/2001.

12. Mr. PILLAI. He stressed that education in its entirety was the most basic and critical component of a State's efforts to promote racial equality and harmony, and its impact on health, employment and poverty could not be overemphasized. He hoped, too, that the United States Government would pay due regard to the various reports circulated by a number of civil society organizations relating to racial discrimination in education.

13. Ms. BRITZ said she wondered in general, how, in a country with such a large amount of anti-discrimination legislation, such a high degree of inequality could still exist in matters such as health care, criminal justice, educational opportunities and housing; and whether the legislation itself had particular weaknesses or whether it was not the appropriate cure for racial inequality. A more specific question concerned discrepancy as to what was understood by discrimination, as defined in article 1, paragraph 1 of the Convention and further clarified in the Committee's General Recommendation XIV. According to a Supreme Court interpretation (para. 235 of the report), discriminatory intent, as well as disparate impact, had to be shown in order to demonstrate a constitutional violation of equal protection. But intent was much more difficult to prove than impact. Reading between the lines of the report, it was clear that its authors were aware of that discrepancy.

21. Ms. JANUARY-BARDILL, while recognizing that the Fifth and Fourteenth Amendments to the Constitution prohibited racial discrimination on the part of any public authority (report, para. 177) and that there existed a vast legal environment for implementation of measures relating to the Convention (report, paras. 84-144), expressed concern that, despite the existence of the legal framework and implementing mechanisms, numerous factors continued to have a negative effect on implementation (paras. 71 and 72). High levels of institutional and systemic racial discrimination persisted, as  evidenced for example by lack of educational opportunity, discrimination within the criminal justice system, unequal health care for minorities and disadvantaged women, and continued inequality for the African-American population. She stressed that covert racial discrimination was sometimes more dangerous than overt racial discrimination and its effects more devastating and therefore wondered who was to blame for factors which continued to affect implementation and for inadequate funding of public services, how local, state and federal authorities were reacting to violations of legislation at the institutional level, and who would address issues relating to equal access and ensure that equal treatment continued.

23. Mr. YUTZIS, referring to article 5 and the obligation of States parties to guarantee the rights of all, noted that among the factors affecting implementation described in the report was “under-funding of federal and State civil rights agencies” (para. 71(b)), and requested statistics on levels of funding for human rights activities, specifically statistics expressed not only in actual figures, which were relative and could be misleading, but also as a percentage of gross domestic product, which would provide a better understanding of the priority and resources allotted to human rights questions, and should preferably be broken down by areas such as housing, health, etc.

31. [Mr. THORNBERRY.] On the question of affirmative action, article 2, paragraph 2, of the Convention made it very clear that special measures to remedy disadvantage were mandatory when the circumstances so warranted. Such were the special measures taken by the United States Government on behalf of Native Hawaiians (report, para. 48). Although the Supreme Court had cast doubt on the Congress's authority to legislate in such a manner, and although various lower-court judgements [sic] had ordered an end to other affirmative action programmes (report, para. 275), the notion of equality employed in the Convention was one of equality in fact, which implied that those at a disadvantage must be treated differently and that such affirmative treatment could legitimately be ended only when the need for it had clearly ceased. That goal had not been reached in the United States, as indicated in paragraph 276 of the report.

 Appendix D

Selected Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America. 14/08/2001.

The Committee on the Elimination of Racial Discrimination, issued a report outlining its observations regarding the United States compliance. Below are several paragraphs related to health:

380. The Committee considered the initial, second and third periodic reports of the United States of America (CERD/C/351/Add.1), submitted as one document, which were due on 20 November 1995, 1997 and 1999 respectively, at its 1474th, 1475th and 1476th meetings (CERD/C/SR.1474-1476), on 3 and 6 August 2001. At its 1486th meeting (CERD/C/SR.1486), on 13 August 2001, it adopted the following concluding observations:

383. In view of the dialogue held, the Committee wishes to emphasize that irrespective of the relationship between the federal authorities, on the one hand, and the States, which have extensive jurisdiction and legislative powers, on the other, with regard to its obligation under the Convention, the Federal Government has the responsibility to ensure its implementation on its entire territory.

390. The Committee, concerned by the absence of specific legislation implementing the provisions of the Convention in domestic laws, recommends that the State party undertake the necessary measures to ensure the consistent application of the provisions of the Convention at all levels of government.

392. The Committee also notes with concern the position of the State party with regard to its obligation under article 2, paragraph 1 (c) and (d), to bring to an end all racial discrimination by any person, group or organization, that the prohibition and punishment of purely private conduct lie beyond the scope of governmental regulation, even in situations where the personal freedom is exercised in a discriminatory manner. The Committee recommends that the State  party review its legislation so as to render liable to criminal sanctions the largest possible sphere of private conduct which is discriminatory on racial or ethnic grounds.

393. The Committee draws the attention of the State party to its obligations under the Convention and, in particular, to article 1, paragraph 1, and general recommendation XIV, to undertake to prohibit and to eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect. The Committee recommends that the State party take all appropriate measures to review existing legislation and federal, State and local policies to ensure effective protection against any form of racial discrimination and any unjustifiably disparate impact.

398. While noting the numerous laws, institutions and measures designed to eradicate racial discrimination affecting the equal enjoyment of economic, social and cultural rights, the Committee is concerned about persistent disparities in the enjoyment of, in particular, the right to adequate housing, equal opportunities for education and employment, and access to public and private health care. The Committee recommends that the State party take all appropriate measures, including special measures according to article 2, paragraph 2, of the Convention, to ensure the right of everyone, without discrimination as to race, colour, or national or ethnic origin, to the enjoyment of the rights contained in article 5 of the Convention.

399. With regard to affirmative action, the Committee notes with concern the position taken by the State party that the provisions of the Convention permit, but do not require States parties to adopt affirmative action measures to ensure the adequate development and protection of certain racial, ethnic or national groups. The Committee emphasizes that the adoption of special measures by States parties when the circumstances so warrant, such as in the case of persistent disparities, is an obligation stemming from article 2, paragraph 2, of the Convention.