IV. REMEDIAL AFFIRMATIVE ACTION IS CONSISTENT WITH UNITED STATES TREATY OBLIGATIONS UNDER THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
The Convention on the Elimination of All Forms of Racial Discrimination (CERD) forbids all racial discrimination and demands recognition of human rights and fundamental freedoms on an "equal footing." Convention on the Elimination of All Forms of Racial Discrimination, K.A.V. 2307, 5 I.L.M. 352 (1966)K.A.V. 2307, 5 I.L.M. 352 (1966), 660 U.N.T.S. 195, 216-218,660 U.N.T.S. 195, 216-218, art. 2, ¶ 1. In this regard, the CERD adopts a rule roughly congruent with the Equal Protection clause.
The CERD also recognizes an exception for remedial affirmative action, so long as the remedy does not outlast the injury. Convention on the Elimination of All Forms of Racial Discrimination, K.A.V. 2307, 5 I.L.M. 352 (1966)K.A.V. 2307, 5 I.L.M. 352 (1966), 660 U.N.T.S. 195, 216-218,660 U.N.T.S. 195, 216-218, art. 1, ¶ 4, art. 2, ¶ 2. Under CERD, remedial affirmative action is not only permissible, but may be obligatory.
At last count, one hundred and fifty-seven nations have ratified the CERD, including the United States, one of the last to ratify. The United States Senate ratified the CERD on June 24, 1994, 140 Cong. Rec. 14,326 (1994), by the required two-thirds majority. U.S. Const. art. II, § 2. Under Article VI of the Constitution, ratified treaties become supreme Federal law, overruling contrary Federal laws, as well as contrary provisions in State laws or State Constitutions. U.S. Const. art. VI.
The Senate ratification contained several reservations, none of which touched upon Equal Protection or affirmative action. 140 Cong. Rec., at 14,326. The Senate also included a declaration that the CERD was not "self-executing," ibid.
On December 10, 1998, President Clinton issued Executive Order 13107Executive Order 13107, establishing the policy of the United States to respect and fully implement certain human rights treaties, including the CERD. Exec. Order No. 13107, 3human rights treaties, including the CERD. Exec. Order No. 13107, 3 C.F.R. 234 (1999).
Even in light of the Senate's declaration, and giving minimal effect to Executive Order 13107Executive Order 13107, the CERD represents a valid treaty obligation of the United States, supporting the remedial use of affirmative action as consistent with both racial non-discrimination and equal protection. Jordan J. Paust, Customary International Law and Human Rights Treaties Are Law of the United States, 20 Mich. J. Int'l L. 301 (1999). While a mere treaty never overrides the United States Constitution, this Court should pause thoughtfully before restricting remedial affirmative action in education on Equal Protection grounds, and consider the provisions of the solemn treaty ratified by the vast majority of world's nations, including the United States of America. Jordan J. Paust, Race-Based Affirmative Action and International Law, 18 Mich. J. Int'l L. 659 (1997).
