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.
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.
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.
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
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.