Race, Health Care and the Law 
Speaking Truth to Power!

ICERD

Checkout: Reclamationgallery.com

Vernellia R. Randall
Professor of Law and
Web Editor

 

Search this site
  powered by FreeFind
 

 
What's New
Awards and Recognitions
 

Chapters

Health Status
Organization and Financing
Access to Health Care
Quality of Health Care
Health Care Research

Bio-ethical Issues
Health and Human Rights
International Issues

The Health Care Challenge

Eliminating Disparities
 

Syllabi

AIDS
American Health Care Law
Bioterrorism 
Health Care Malpractice

Tobacco

Violence and Public Health
 

Surveys

 

Favorite Poetry

Invictus
The Bridge Poem
Still I Rise
No Struggle No Progress
 

Related Websites

Race and Racism
Gender and the Law
Legal Education
Personal Homepage

 

Vernellia R. Randall 

/INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

Racial Discrimination in Health Care in the United States as a Violation Of the International Convention on the Elimination of All Forms of Racial Discrimination, [a1] 14 University of Florida Journal of Law and Public Policy 45-91 (Fall, 2002)

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.(10) Until ratification of the Convention on the Rights of the Child in 1993,(11) CERD was the most widely ratified of the core human rights treaties.(12) The Convention was signed on behalf of the United *48 States on September 28, 1966.(13) It was not transmitted to the U.S. Senate for advice and consent to ratification for almost twelve years (February 23, 1978).(14) The U.S. Senate resisted its adoption and ratification;(15) consequently, the treaty was not ratified for another sixteen years.(16) Thus, it was almost thirty years (1994) after its adoption by the United Nations before the U.S. Senate gave its advice and consent(17) to ratify CERD.(18)

CERD prohibits racial discrimination, which it broadly defines as any distinction based on "race, colour, descent, or national or ethnic origin"(19) that has the purpose or effect of impairing human rights and fundamental freedoms.(20) 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.(21) However, the United States ratified CERD with three reservations, an understanding, and a declaration that *49 qualified the extent to which the United States would adhere to the treaty.(22) 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. (23)The United States did not submit a report until 2000.(24)

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.(25) Although not legally binding,(26) the CERD Committee makes concluding observations about the reports and may make suggestions on how the reporting states could improve their application of CERD.(27)

CERD procedure permits interested nongovernmental organizations to submit shadow reports on a state's compliance to the Convention.(28) Numerous organizations submitted shadow reports,(29) including the Allied *50 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).(30) 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(31) and provided a summary of issues relating to U.S. noncompliance with the Convention.(32) The White Privilege Shadow Report also included discussions of Welfare Policy by Julie Quiroz-Martinez of the Center for Third World Organizing,(33) 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,(34) and Land Use Policy by Gavin Kearney of the Institute on Race and Poverty.(35)

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.(36) This Article then makes specific recommendations to the CERD Committee(37) 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.

 

Up
ICERD
Racial Disparity in Health Status
Institutional Racism in US Health Care
Inadequacy of Legal Efforts
US Violations of ICERD
Recommendations and Conclusions
Appendix A US Report
Appendix B White Shadow Report Excerpts
Appendix C: Concluding Remarks 1475th CERD Meeting
Appendix D Concluding Observations

 

10. [FN10]. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter CERD].

11. [FN11]. United Nations: Convention on the Rights of the Child, 28 I.L.M. 1448 (1989) (entered into force Sept. 2, 1990).

12. [FN12]. Some commentators argue that the Racial Discrimination Convention had widespread support because it was viewed primarily as a statement against apartheid and colonialism. See, e.g, Stephanie Farrior, The Neglected Pillar: The "Teaching Tolerance" Provision of the International Convention on the Elimination of All Forms of Racial Discrimination, 5 ILSA J. INT'L & COMP. L. 291 (1999). I would like to take particular note of the first of the core human rights treaties developed since adoption of the Universal Declaration. Universal Declaration of Human Rights, U.N. General Assembly Resolution 217 A(III) (December 1948). The Convention was followed in 1966 by adoption of the two Covenants: the Covenant on Economic, Social and Cultural Rights, International Covenant on Economic, Social and Cultural Rights. U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966) (entered into force Jan. 3, 1976); International Covenant on Civil and Political Rights, U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966) (entered into force Mar. 23, 1976).

13. [FN13]. Office of the U.N. High Commissioner for Human Rights, Status of Ratifications of the Principal Human Right Treaties, status as of June 17, 2002, available at http://www.unhchr.ch/html/menu3/b/d_icerd.htm (last visited June 26, 2002); McDougall, supra note 9.

14. [FN14]. See 140 Cong. Rec. S7634 (daily ed. June 24, 1994) [hereinafter CERD Ratification].

15. [FN15]. James Jennings identified several factors for this resistance. First, the United States was in the midst of the Cold War with the Soviet Union and the human rights issue was seen as a political football between the two superpowers. Second, the federalist structure of the U.S. Government required approval by the U.S. Senate. Third, the relative political weakness of the African-American community in this country. Fourth the traditional U.S. posture that its own domestic arena is off limits to international bodies. See James Jennings, The International Convention on the Elimination of All Forms of Racial Discrimination: Implications for Challenging Racial Hierarchy, 40 HOW. L.J. 597 (1997).

16. [FN16]. CERD Ratification, supra note 14 (consenting to ratification of CERD).

17. [FN17]. See U.S. Const. art. II, 2, cl. 2 (stating that two-thirds of U.S. Senate must give "advice and consent" to the President in order to ratify treaties).

18. [FN18]. See CERD Ratification, supra note 14.

19. [FN19]. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, 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.

CERD, supra note 10, art. 1.

20. [FN20]. Id.

21. [FN21]. Id. art. 2(1)(c) (stating that "[e]ach State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists").

22. [FN22]. See CERD Ratification, supra note 14, S7634 n.12; 1978 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 440-46 [hereinafter cited as U.S. DIGEST]; Contemporary Practice, 72 AM. J. INT'L L. 620, 621-22 (1978). These reservations, declarations, and understandings have been the subject of considerable discussion and will not be addressed. See, e.g., International Human Rights Treaties: Hearings Before the Senate Comm. on Foreign Relations, 96th Cong. (1st Sess. 1980).

23. [FN23]. CERD, supra note 10, art. 9(1).

24. [FN24]. REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 9 OF THE CONVENTION, Third periodic reports of States parties due in 1999, Addendum, United States of America (Sept. 21, 2000), available at http:// www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.351.Add.1.En?Opendocument (last visited June 26, 2002) [hereinafter REPORTS] (The present report purported to bring together in a single document the initial, second, and third periodic reports of the United States of America, which were due on November 20, 1995, 1997, and 1999 respectively). See also U.S. State Report, available at http:// www.state.gov/www/global/human_rights/cerd_report/cerd_index.html (last visited June 26, 2002).

25. [FN25]. CERD, supra note 10, arts. 9-14. See also U.N. High Commissioner for Human Rights Fact Sheet No. 12: The Committee on the Elimination of Racial Discrimination, available at http://www.unhchr.ch/html/menu6/2/fs12.htm (last visited June 26, 2002) [hereinafter Fact Sheet No. 12] (stating that because State Parties are accountable to international forum on racial discrimination, they have made changes in national law to bring them into compliance with CERD and describing reporting procedure, state-to-state complaint procedure, and individual complaint procedure).

26. [FN26]. CERD, supra note 10, arts. 9-14.

27. [FN27]. Id. art. 9(1) (describing report as consisting of legislative, judicial, administrative, or other measures adopted by State Party that implement CERD).

28. [FN28]. Id. arts. 8-14 (CERD has expansive authority over reports, State complaints, and individual communications, which place it in a powerful position to expose State violations).

29. [FN29]. International Human Rights Law Group (IHRLG) developed guidelines for writing and submitting shadow reports to CERD and assisted law firms, non- govermental organizations (NGOs) and institutions in creating their reports. In fact, IHRLG facilitated the preparation of eleven shadow reports issued by the following groups: Americans for a Fair Chance, National Congress of American Indians, National Coalition to Abolish the Death Penalty, American Civil Liberties Union, Community Voices Heard, Alaska Inter-Tribal Council/Alaska Federation of Natives, Inc., American University, Washington College of Law, and the Gonzaga University, Center for Law and Justice; see web site, available at http://www.hrlawgroup.org/country_programs/united_states/advocacy.asp (last visited June 26, 2002).

30. [FN30]. 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 (Makani Themba-Nixon ed., 2001), available at http://www.arc.org/trji/ (last visited June 26, 2002) [hereinafter White Privilege Shadow Report].

31. [FN31]. Id. at 10-11.

32. [FN32]. Id. at 12-13.

33. [FN33]. Id. at 17-26.

34. [FN34]. Id. at 39-53.

35. [FN35]. White Privilege Shadow Report, supra note 30, at 39-53.

36. [FN36]. Id. at 24-37.

37. [FN37]. Id. at 54-71.

 

 
Related Pages:
Home ] Up ] [ ICERD ] Racial Disparity in Health Status ] Institutional Racism in US Health Care ] Inadequacy of Legal Efforts ] US Violations of ICERD ] Recommendations and Conclusions ] Appendix A US Report ] Appendix B White Shadow Report Excerpts ] Appendix C: Concluding Remarks 1475th CERD Meeting ] Appendix D Concluding Observations ]
Subsequent Pages:
Home ] Up ]
Previous Pages:
Home ] The Human Right to Health ] Shadow Report to CERD on Health ] Health and WCAR ] Racism Health and Sustainable Development ] Racial Discrimination in Health Care and CERD ]
Home Up Next

Always Under Construction!

Always Under Construction!

 

Contact Information:
Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

Last Updated:
 03/10/2010

You are visitor number:
Hit Counter
since Sept. 2001

Copyright @ 1993, 2008. Vernellia R. Randall 
All Rights Reserved.