COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF UNITED STATES

Committee on the Elimination
of Racial Discrimination

22 February 2008


The Committee on the Elimination of Racial Discrimination has considered the combined fourth to sixth periodic reports of the United States on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

Presenting the report, Warren Tichenor, Permanent Representative of the United States to the United Nations Office at Geneva, said the United States Government strongly supported the elimination of racial discrimination at home and abroad. The United States was a vibrant, multi-racial and multi-ethnic democracy, in which individuals had the right to be protected against discrimination based on race, colour and national origin in virtually every aspect of public life. The United States Constitution and federal law, plus the constitutions and laws of the states and many other governmental bodies prohibited discrimination in a broad array of areas. The United States had made significant progress in improving race relations in the past, and it continued to work actively to eliminate racial and ethnic discrimination. However, challenges still existed, and a great deal of work remained to be done.

Grace Chung Becker, Acting Assistant Attorney General in the Civil Rights Division of the Department of Justice of the United States, continuing with the presentation, noted that, last year, the United States Justice Department had celebrated the fiftieth anniversary of the Civil Rights Division, charged with enforcing the nation’s laws prohibiting discrimination. Today, the Civil Rights Division had approximately 700 employees in Washington, D.C., alone, dedicated solely to enforcing the federal civil rights laws, and had Justice Department attorneys throughout the country in 93 United States Attorney’s Offices available to prosecute or litigate civil rights cases. The Civil Rights Division’s efforts in combating racial discrimination, in both civil and criminal arenas, were wide ranging. Some recent accomplishments included the conviction of James Seale, who had been sentenced to three life sentences for his role in the murder of two African American teenagers in Mississippi in 1964.

During the discussion, Linos-Alexandre Sicilianos, the Committee Expert who served as country Rapporteur for the report of the United States, raised a number of concerns, including the necessity of proving racial intent in court cases alleging racial discrimination, with some exceptions; the United States position that special measures (i.e. affirmative action) were merely discretionary; recent decisions by the Supreme Court in the education sphere and the worrying fact that segregation still existed in American schools; and the fact that people of colour were grossly overrepresented among the United States prison population. Here, Mr. Sicilianos recalled the Committee's General Recommendation 31, in which it had held that stark racial disparities in the prison population were strong indicators of racial discrimination in the administration and running of the criminal justice system. Moreover, he noted that women of colour represented the fastest growing group in the prison population, and the number of children of colour who were being sentenced to life terms was disproportionate. Another concern was overwhelming evidence of police brutality against racial and ethnic minorities, including African Americans, Latinos, Arabs and Muslims, and transgender women of colour.

Other Committee Experts raised questions, made comments, and asked for further information on subjects pertaining to, among other things, overlong delays in addressing issues of racial discrimination in the courts (one case involving segregation in the schools instigated in 1980 had only been settled in 2004); the need to establish an independent national human rights institution; the aftermath of 11 September 2001, and whether there had been a resulting trend or impact on immigration from Arab countries and South Asia; disturbing reports of racist acts perpetrated on black and Latina women in the context of law enforcement actions; the fence being built between the United States and Mexico, partly on Native American lands; the proposed guest-worker immigration programme; and the lack of ratifications by the United States of many major international human rights instruments. Many comments and questions centred on the issue of the rights of Native Americans and tribal peoples, in particular to their lands. The fact that people of colour were disproportionately represented in prisons and jails was also the subject of numerous queries. One concern was that, as in many states those who were convicted of serious crimes lost the right to vote, sometimes even if they had served out their sentences. That meant that, in some states, the proportion of black males that were not able to vote was as high as 13 per cent, and could reach as high as 40 per cent in some states if the current rate of incarceration continued. An Expert was also concerned about the racial dimension of the implementation of the death sentence in the United States, as the majority of those on death row were black.

The delegation of the United States also included some two-dozen representatives coming from a number of governmental agencies and departments, including the Department of the Interior, the Department of Justice, the Department of State, the Department of Homeland Security, and the Equal Employment Opportunity Commission; representatives from the Permanent Mission of the United States to the United Nations Office at Geneva; and several advisers coming from the private sector.

The Committee will present its written observations and recommendations on the fourth to sixth periodic reports of the United States, which were presented in one document, at the end of its session, which concludes on 7 March.

When the Committee next reconvenes in public, at 3 p.m. on Monday, 25 February, it is scheduled to take up the fourteenth and fifteenth periodic reports of Belgium (CERD/C/BEL/15).

Report of the United States

The combined fourth to sixth periodic reports of the United States (CERD/C/USA/6), presented in one document, says that, in order to address the incidence of brutality and discriminatory actions noted in the initial United States report, the United States has stepped up its training of law enforcement officers with a view to combating prejudice that may lead to violence. In the aftermath of 9/11, one of the focus areas for such training has been the increased bias against Arab Americans and Muslim Americans. The Department of Justice Community Relations Service has established dialogues between government officials and Arab and Muslim communities in the Unites States, and has created a training video for law enforcement officers. The Department of Homeland Security - one of the largest federal law enforcement agencies in the United States - has emphasized training for Department of Homeland Security employees and is developing an online “Civil Liberties University.” The Federal Bureau of Investigation (FBI) also expanded cultural sensitivity training to all Special Agents in response to broader post-9/11 FBI investigative jurisdiction in these communities.

The United States has in place a panoply of legislation and measures, including special measures, to ensure non-discriminatory treatment. Substantial progress in addressing disparities in housing, education, employment and access to health care has been made over the years, and evidence of further progress in a number of areas is set forth in this report. For example, the gap between poverty rates for both African Americans and Hispanics as compared to that for non-Hispanic Whites has closed slightly since the 1998 rates described in the initial United States report. In addition, the unemployment rate for Hispanics dropped between 1999 and 2005, and the 2005 jobless rate among immigrants fell below that of U.S.-born workers for the first time in at least a decade. Minority-owned businesses represent the fastest-growing segment of the nation’s economy, including African American-owned business growth at four times the national average and Hispanic-owned business growth at three times the national rate. Some evidence also suggests that gaps in educational attainment may be beginning to close, at least at the elementary and middle school levels. Special measures are in place for education, business development, contracting, and a number of other areas that contribute to the enjoyment of social and economic rights.


Presentation of Report

WARREN TICHENOR, Permanent Representative of the United States to the United Nations Office at Geneva, in a brief opening statement, said that the United States Government strongly supported the elimination of racial discrimination at home and abroad. Today, the delegation would have the opportunity to discuss the specific actions taken in the United States since 2000 to address racial and ethnic discrimination in that country. The United States was a vibrant, multi-racial and multi-ethnic democracy, in which individuals had the right to be protected against discrimination based on race, colour and national origin in virtually every aspect of public life. The United States Constitution and federal law, plus the constitutions and laws of the states and many other governmental bodies prohibited discrimination in a broad array of areas. The United States had made significant progress in improving race relations in the past, and it continued to work actively to eliminate racial and ethnic discrimination. However, challenges still existed, and a great deal of work remained to be done.

GRACE CHUNG BECKER, Acting Assistant Attorney General in the Civil Rights Division of the Department of Justice of the United States, noted that, last year, the United States Justice Department had celebrated the fiftieth anniversary of the Civil Rights Division, charged with enforcing the nation’s laws prohibiting discrimination. Today, the Civil Rights Division had approximately 700 employees in Washington, D.C., alone, dedicated solely to enforcing the federal civil rights laws, and had Justice Department attorneys throughout the country in 93 United States Attorney’s Offices available to prosecute or litigate civil rights cases. The Civil Rights Division’s efforts in combating racial discrimination, in both civil and criminal arenas were wide ranging. Last year, they had started a racial threats initiative to facilitate investigations of racially motivated threats around the country. As part of that initiative, it was prosecuting a case involving nooses hung from the back of a truck that slowly and repeatedly circled around a group of peaceful civil rights demonstrators who were waiting at a bus stop. Some recent accomplishments included the conviction of James Seale, who had been sentenced to three life sentences for his role in the murder of two African American teenagers in Mississippi in 1964, and a favourable court ruling in New York, where the Civil Rights Division had alleged that the Village of Port Chester had discriminated against Hispanic Americans by using an at-large election system to select its Board of Trustees.

The Justice Department’s Civil Rights Division was just one part of the federal government that was engaged in the fight against discrimination, Ms. Becker observed. There were many government agencies at the federal, state and local level that were also working to combat illegal discrimination in the United States. Some of those agencies were represented here today. Moreover, various religious, civil rights and non-governmental organizations played significant roles in the struggle against racism and other forms of injustice.

Response by the Delegation to Written Questions Submitted in Advance

Responding to the list of issues submitted by the Committee in advance, the delegation said that, as to disaggregated information on the non-citizen population of the United States, in 2003 the foreign born population was estimated to be 33.5 million, or approximately 11.7 per cent of the total United States population. Based on 2003 data, the population was 88.3 per cent native, 4.5 per cent naturalized citizens, and 7.2 per cent non-United States citizens. As for the rights of non-citizens, the United States wished to point out that, according to Article 1 of the Convention, it did not apply to distinctions, exclusions or preferences between citizens and non-citizens. Nevertheless, aliens on the United States territory enjoyed substantial protections under the United States Constitution and other laws. Many of those were shared on an equal basis with citizens, including a broad range of protections against racial and national origin discrimination. In addition, many federal statutes conferred rights on non-citizens and were often enacted out of recognition of the particular vulnerabilities faced by that group.

Regarding the Committee’s claim that racial discrimination under United States civil rights statutes had to be accompanied by proof of intentional discrimination, the delegation clarified that the United States did not invariably require such proof. To give two examples: first, although the Supreme Court had held that proof of intentional discrimination was required for race discrimination claims brought against public employers under the relevant clauses of the Constitution, the Court did not require intentional discrimination when claims of racial discrimination in employment were brought under the relevant federal civil rights statutes; second, under the Voting Rights Act, the law prohibited not only election-related practices and procedures that were intended to be racially discriminatory, but also those that were shown to have a racially discriminatory impact.

Concerning racial profiling and measures to combat it, the delegation said that, in addition to significant constitutional protections, the current Administration was the first to issue racial profiling guidelines for federal law enforcement officers and remained committed to the elimination of unlawful racial profiling by law enforcement agencies. Several statutes authorized the Attorney General to bring civil actions to eliminate pattern or practice of law enforcement misconduct, including allegations of racial discrimination, including the use of racial profiling. If a pattern of practice of unconstitutional policing was detected, the Department of Justice would typically seek to work with the local agency to revise its policies, procedures and training and protocols to ensure conformity with the Constitution and federal laws. Additionally, the United States combated racial profiling by restricting funds to law enforcement agencies that engaged in the practice and requiring law enforcement agencies to comply with various anti-discrimination laws. Furthermore, the Community Relations Service of the Department of Justice also provided racial profiling training free of charge to law enforcement officials around the country. The Department of Homeland Security had also adopted the guidance issued by the Department of Justice in this area and used it as the basis for officer training.

On concrete cases involving “pattern or practice” investigations, the delegation noted that such investigations were labour and resource-intensive, often requiring the use of non-attorney experts and taking many months, if not years, to complete. During 2007, the Department of Justice had initiated 14 new patterns or practice investigations. The Equal Employment Opportunity Commission also investigated and litigated systemic cases. In April 2006, it launched its Systemic Initiative, a programme that strengthened the Commission’s nationwide approach in this area, in part through emphasizing the use of enhanced technology, increased expert resources and nationwide coordination. The initiative had resulted in an increase in the number of suits that the Commission had filed seeking relief for large numbers of victims.

Turning to the issue of how recent Supreme Court decisions in the area of education accord with what the Committee referred to as the “obligation” under Article 4 of the Convention for States parties to “adopt special measures, when the circumstances so warranted” to secure adequate development and protection of certain racial, ethnic or national groups, the United States reiterated its view that decisions concerning when such measures were warranted and what type of measures should be taken were left to the judgement and discretion of each State party. The United States position was that special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups and individuals requiring such protection might or might not in themselves be race-based. In Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court had addressed the use of racial classifications in the assignment of students to public schools. The Court had held that the school districts in question had not demonstrated that their race-conscious assignment plans were narrowly tailored to achieve a compelling government interest. Unlike the assignment plans in Seattle, race-neutral measures – for instance, those based on economic standards – did not trigger strict scrutiny, and were instead subject to the rational standard.

The United States shared the Committee’s concerns about the concentration of racial, ethnic and national minorities in poor residential neighbourhoods, whether or not such concentrations were the result of racial discrimination under the Convention. Both the Department of Justice’s Civil Rights Division and the Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity enforced numerous laws and Executive orders that combated housing discrimination. In fiscal year 2007, the Department of Housing and state and local government agencies received 10,154 complaints. In addition to those enforcement measures, the Department of Housing had numerous programmes that affirmatively promoted fair housing, including through education and outreach.

Regarding hate crimes, the delegation noted that 47 states had hate crime laws, which they actively enforced, and engaged in aggressive efforts to track and prevent such crimes. The prosecution of hate crimes was also a high priority for the Department of Justice. Since this present report had been submitted, there had been 20 additional federal defendants charged in connection with crimes such as cross-burnings, arson, vandalism and shootings, and they had investigated more than 800 bias-motivated incidents directed towards individuals perceived to be Arab, Muslim, Sikh or South Asian since 11 September 2001, and had brought federal charges against 38 defendants, resulting in 35 convictions.

In response to a request for information to eliminate racial disparities in the criminal justice system, the delegation affirmed the Government’s commitment to ensuring equal justice for all people. The reasons for those disparities were complex. Moreover, recent data indicated that the rate of growth for African Americans in incarceration for both jail and prison had been below that for White non-Hispanics and Hispanics. That was a hopeful sign. Although there had been a number of studies on the extent of racial disparities in capital cases, the evidence was equivocal. Some studies showed effects of the race of the victim, but others showed none when characteristics of the crime were controlled for. No studies showed statistically significant effects based on the race of the defendant.

Regarding police brutality against minorities, the delegation stated categorically that police brutality was unacceptable under any circumstances and that where conducted for reasons of racial animus was a reprehensible criminal act. Since 2000, the Department of Justice had convicted more than 400 officers and public officials for criminal misconduct; many of those defendants had been convicted for abusing minority victims.

As for measures in the wake of the 11 September 2001 attack to prevent and punish “backlash” discrimination against Arabs, Muslims and South Asians, the United States had taken widespread and systematic efforts to address that issue. Despite a drop in the number and seriousness of such crimes, identifying and prosecuting such crimes remained a priority for the Civil Rights Division. Government agencies throughout the United States engaged in public outreach with those communities, and enforcement of federal protections on behalf of that group extended to the areas of education, employment and housing. Since 11 September 2001, the Equal Employment Opportunity Commission had received over 1,000 complaints of employment discrimination filed by persons of Arab, Muslim, Middle Eastern or South Asian descent. As of December 2007, the Commission had obtained relief through its administrative process exceeding $4 million for 152 persons aggrieved by backlash claims.

Responding to the query about whether treaties between the United States and Indian tribes could be abrogated unilaterally by Congress and whether there was a doctrine of “encroachment” as a justification for diminishing indigenous claims to land, including with respect to the Western Shoshone, the delegation said that open and transparent processes were in place that provided for abrogation of such treaty-based rights, where deemed appropriate, by Congress and in conjunction with just compensation for a tribe whose rights had been so abrogated. For example, if under a treaty a tribe was allowed to hunt an animal that later was listed as an endangered species, the Congress could pass a law limiting everyone, including the tribe from hunting that animal. The United States would then have to justly compensate the tribe for that abrogation.

There was not currently a “general doctrine of encroachment” being applied to deprive Native Americans of their lands by the government or non-Indians, the delegation stressed. Regarding the Western Shoshone claim, the United States had provided an extensive answer in the report. In brief, in 1951, the Western Shoshone brought a case seeking financial compensation for lands that they argued had been “encroached on”. The tribal claim was successful, resulting in a decision that Western Shoshone aboriginal title had been extinguished in 1872 and that compensation be paid to the tribe for the land and the sub-surface resources. Subsequently, certain Western Shoshone descendents, objected to litigation strategy pursued in the claims case, but those individuals failed to bring their objections in time or to even present an excuse for their 23-year delay in seeking to intervene in the proceedings.

Turning to federal and state measures to assist those displaced by Hurricane Katrina – most of whom were African Americans – the delegation said that over the two and half years since the devastation of Hurricanes Katrina and Rita the Federal Emergency Management Agency had provided an unprecedented level of support and assistance to the people and communities of the Gulf Coast. The Agency had assisted millions of disaster victims and facilitated the means for hundreds of thousands of displaced evacuees to successfully find and move into long-term housing. During this period, over $7.7 billion had been provided to more than 1.4 million households.

As for measures to address existing racial disparities in the field of sexual and reproductive health, the delegation noted that improving access for women, including minority women, to adequate health care was a priority for the United States. Among the programmes in place was the “A Healthy Baby Begins with You”, which focused on the African-American community, providing information about pre-natal health, free and low cost pre-natal and birthing health care, HIV/AIDS screening for mothers and newborns, and post-natal care for infants. Indeed, HIV/AIDS was now the leading cause of death for black women aged 25 to 34. As part of efforts of the Health Service to combat that, the Office of Women’s Health sponsored awareness programmes that informed women of their risks and measures they could take to protect themselves.

Oral Questions Raised by the Rapporteur and Experts

LINOS-ALEXANDRE SICILIANOS, the Committee Expert who served as country Rapporteur for the report of the United States, thanked the delegation for its extensive written and oral replies, as well as the presence and contributions of civil society organizations, which was a sign of vibrant civil society in the United States.

On the definition of racial discrimination and the element of “intent” as set out in the Convention, Mr. Sicilianos noted that United States law did not invariably require proof of discriminatory intent, but that it was necessary in claims brought against employers. If he understood correctly, with some exceptions, plaintiffs alleging racial discrimination in United States courts were constrained to prove that the defendant had intended to discriminate, and that discriminatory intent had caused the plaintiff's harm. That was a very difficult standard of proof; it was extremely difficult to prove intent. He suggested that the United States consider sharing the burden of proof in civil cases.

Mr. Sicilianos, noting additional information on the ability to prosecute certain cases of racial discrimination in the private sphere, wondered if the United States would consider withdrawing its reservation against the Convention’s prohibition of racial discrimination in the private domain, or at least narrowing it.

Although the President had absolutely affirmed that racial profiling would not be used in the United States, Mr. Sicilianos noted that the draft law prohibiting racial profiling had yet to be adopted and that the Department of Justice had issued guidelines on that issue. To his mind, that was contradictory. Indeed, instead of ending this practice, the United States were giving guidance to police to show them how to do it.

Concerning special measures, and the obligation of States parties to resort to them in cases that so warranted, Mr. Sicilianos wished to draw attention to the fact that the United States and the Committee had divergent views. Whereas the Committee spoke of the State party’s obligation to implement such measures in certain cases, the United States spoke of discretionary measures. In particular, recent decisions by the Supreme Court in the education sphere were perceived by non-governmental organizations to have undermined traditional United States jurisprudence in this area, such as Brown vs. the Board of Education. The Congress could adopt legislation to address that phenomenon, in particular given the worrying phenomenon of segregation that still existed in American schools.

The United States replies had noted that racial segregation continued to remain a serious problem in most urban settings. However, racial discrimination in housing was closely related to racial disparities in other areas, such as education, employment, health care, exposure to violence and crime, and disparate sentencing. While the United States had taken a series of measures to combat segregation in housing, Mr. Sicilianos felt that a more sustained effort was necessary.

Regarding equal treatment before tribunals and other justice organs, Mr. Sicilianos said that it was a fact that people of colour were grossly overrepresented among the United States prison population. Whereas the delegation had attributed that disparity to the greater involvement of such groups in criminal activities, in its General Recommendation 31, the Committee had held that stark racial disparities in the prison population were strong indicators of racial discrimination in the administration and running of the criminal justice system. Moreover, he noted that women of colour represented the fastest growing group in the prison population, and the number of children of colour who were being sentenced to life terms was disproportionate.

Mr. Sicilianos noted the overwhelming evidence of police brutality against racial and ethnic minorities, including African Americans, Latinos, Arabs and Muslims, and transgender women of colour. Despite Department of Justice convictions of law enforcement officials, apparently the United States needed to intensify its efforts at all levels to combat that alarming phenomenon. And, despite the measures cited to combat racial profiling, it was also necessary that the United States strengthen its efforts in that area.

On indigenous land issues, Mr. Sicilianos asked the United States to respond to three demands contained in an indigenous shadow report that had been submitted to the Committee: first that indigenous lands taken under the so-called “plenary powers doctrine” should be restored; second, that sacred lands should be restored to indigenous people, with particular attention to returning the Black Hills of South Dakota to the Lakota Nation; and, third, that any development that affected the sanctity of sacred lands should immediately cease and should only be allowed with the free and informed consent of the indigenous peoples affected.

Other Committee Experts raised questions, made comments, and asked for further information on subjects pertaining to, among other things, the overlong delays in addressing issues of racial discrimination in the courts, with one case involving segregation in the schools instigated in 1980 which was only settled in 2004, too late for the plaintiffs to benefit from it; the need to establish a national human rights institution; the aftermath of 11 September 2001, and whether there had been a resulting trend or impact on immigration from Arab countries and South Asia; whether efforts to help African American women who were disproportionately suffering from HIV/AIDS had been adequately funded; disturbing reports of racist acts perpetrated on black and Latina women in the context of law enforcement actions; the racist fence being built between the United States and Mexico; the proposed guest-worker immigration programme, which would prevent immigrants from being able to change employers if they wished to stay in the country; and the lack of ratifications by the United States of many major international human rights instruments.

Many comments and questions centred on the issue of the rights of Native Americans and tribal peoples, in particular to their lands. An Expert asked why the United States Congress had voted against recognition of tribal status for Hawaiian peoples, and what solution was contemplated to the issues surrounding Native Hawaiians. Another Expert asked for a further explanation of the plenary powers doctrine with regard to Native American lands, and what relation, if any, that bore to the ancient legal precept, the “doctrine of discovery”. The delegation was also asked to explain the procedures for dealing with claims of aboriginal title.

Given that people of colour were disproportionately represented in prisons and jails, an Expert was concerned that in many states those who were convicted of serious crimes lost the right to vote, sometimes even if they had served out their sentences. Today, an estimated 5.3 million current or ex felons were disenfranchised in the United States; that meant that, in some states, the proportion of black males that were not able to vote was high as 13 per cent, and could reach as high as 40 per cent in some states if the current rate of incarceration continued. Were there steps that could be taken at the federal level to address this? Also, despite assertions that there were positive trends in addressing racial discrimination in the prison populations, an Expert said that, according to reliable sources, 90 per cent of adolescents receiving sentences of life without parole were persons of colour, and that black Americans were 10 times as likely to be convicted of crimes than white Americans. An Expert was particularly concerned about the racial dimension of the implementation of the death sentence in the United States, as the majority of those on death row were black.

Response by Delegation to Oral Questions

Addressing oral questions by Experts, the delegation, on the issue of whether all United States statutory law required proof of intent, noted that many civil rights statutes did not require proof of an intent to discriminate. As for the reach of the treaty to private conduct, the Rapporteur had noted that in extensive areas of activity United States law in fact prohibited private acts of discrimination, and wondered whether the United States would consider narrowing its reservation on this issue. Here the United States reiterated its position stated at the time of its reservation: ““[T]he Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental activity. Individual privacy and freedom from governmental interference in private conduct, however, are also recognized as among the fundamental values which shape our free and democratic society.” It was the United States position that the need for the reservation remained.

In the context of article 4, in response to the request for further information on the United States Supreme Court ruling in Virginia v. Black, the delegation noted that in that case the Court had distinguished between constitutionally protected free speech, and a “true threat” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals”. Thus, the Court held that a ban on cross burning carried out with the intent to intimidate could be made criminal without violating the First Amendment (on free speech). The United States fully shared the Committee’s abhorrence of ideas based on racial superiority or hatred, but the United States believed that it was not necessary or permissible to make those ideas criminal. It was the United States position that those ideas would not succeed in a free society because of their intrinsic lack of merit.

As for United States participation in the preparatory process for reviewing the Durban Declaration, the delegation recalled that the United States had withdrawn its negotiators from the first Durban Conference because of pervasive anti-Semitism in its discussions. The United States would make a decision on whether to participate in the 2009 Conference closer to the time it began. But Secretary of State Rice had made it clear that “we don’t have any interest in participating in something that deteriorates into the kind of conference that Durban I” had become.

Regarding Experts concerns about adverse outcomes that persisted in the United States and that continued to disproportionately affect racial minorities in a variety of different, but important contexts, the fact that in 2008 those disparate outcomes continued, despite progress made in eliminating racial discrimination, was something that frankly vexed the Government. This concerns about poor outcomes included areas such as the overrepresentation of African Americans in the criminal justice system, near-segregated housing patterns in some communities, lack of ownership by minorities, disproportionate lack of access to adequate health care for minorities and education. The concerns expressed, and the realities underlying them, underscored the fact that the nexus between racial/ethnic minorities and many poor outcomes was one of the most serious and persistent policy problems the United States had to grapple with. But in seeking solutions, it was important to distinguish between those instances where disparate impact was caused by racial discrimination, and those instances where disparities were the result of something else – class, poverty or cultural factors, for example. When a poor outcome correlated to race was caused by actual racial discrimination, the Government bore the burden of immediate action. However, when other factors were preponderantly in play, it suggested that the strategies the Government might employ might be more circumscribed.

To give an example, Hurricanes Katrina and Rita had devastated virtually all of the affordable housing stock in New Orleans and had also effectively destroyed the City’s primary public facility for providing health care services to its poor. Those twin disasters precipitated a crisis involving the availability of permanent, affordable housing and basic health care services for the City’s low income population, which was comprised substantially of racial minorities. What happened there was that collaborative partnerships began to form to seek solutions and solve problems that probably were not solvable by Government alone. The results of those public-private partnerships were not final as yet, but the prospects were promising. Non-profit organizations were formed to develop and build quality affordable housing, and a joint venture involving the Government and Tulane University Medical centre was established to test and implement a new health services model, which specialized in delivering innovative healthcare services to indigent and vulnerable populations.

Turning to race and the operation of the United States criminal justice system, the delegation noted that differentials in incarceration rates were “possible indicators” of racial discrimination, they were not proof of such discrimination. Many other factors contributed, if they did not cause, such disparities. It was also important to note that the vigorous enforcement of criminal laws provided great benefits to racial, ethnic and economically disadvantaged communities, who were also disproportionately the victims of violent crime. Also, while traditionally the criminal justice system had failed African-Americans by insufficient concern for the lives of black victims of crime, often failing to prosecute or appropriately punish white rapists and murderers, luckily that was no longer the case. In fact the federal government was currently prosecuting two white defendants who were indicted for murdering a black man in Kansas City, Missouri. Because of the exceptional gravity of the offence, the United States would seek the death penalty if the defendants were convicted.

With regard specifically to racial disparities in the death penalty, the delegation reiterated its position that evidence of intentional discrimination was equivocal. With regard to life in prison without parole for juvenile defendants, the delegation affirmed that persons under 18 could be sentenced to life without parole for “gravely serious” crimes. The imposition of such a sentence, however, was accompanied by extraordinary safeguards, including weighing factors concerning the background of the juvenile, the seriousness of the offence, the role the juvenile played in committing the crime, and the past record of the defendant. A juvenile that was tried as an adult in such cases would therefore be judged to be no longer amenable to the treatment and rehabilitative nature of the juvenile justice systems found in most states.

With regard to the racial impact of the differential in federal sentencing for trafficking in crack versus powder cocaine, that was a highly controversial issue in the United States and was the subject of current debate and action, the delegation said. Last fall, the United States Sentencing Commission had lowered the recommended sentence for crack cocaine in order to address the perceived racial effects of the differential, and Congress was also examining the issue.

On the issue of preventing convicted felons from voting, the United States reiterated that the United States Constitution explicitly recognized the rights of states to bar an individual from voting “for participation in rebellion, or other crime”. Most states denied voting rights to persons who had been convicted of certain serious crimes. However, in all cases the loss of voting rights did not stem from a person’s membership in a racial group or on the basis of race, colour, descent or ethnic origin, but was based on criminal acts perpetrated by the individual.

Regarding federal recognition of Indian tribes, the delegation noted that there remained no internationally accepted approach to recognizing tribes. There also remained no internationally accepted definition of the term “indigenous people”. In the United States system, federal recognition of a tribe might occur by treaty, statute, executive or administrative order, or from dealing with a tribe as a political entity. There were currently more than 560 federally recognized tribes in the United States. Criteria for the administrative recognition of tribes as set forth in statutory law included the continuous existence of the American Indian entity since 1900; a predominant portion of the group had to comprise a distinct community that had existed from historical times to the present; and the group had to have maintained political influence or authority over its members. Once a tribe was recognized, it had a government-to-government relationship with the federal government. The Department of the Interior currently had 17 petitioning groups that were undergoing active consideration for federal recognition.

As for the Native Hawaiians, the delegation said that there were substantial historical, structural, and cultural differences between Native Hawaiians as a group and federally recognized tribes and Alaska Native communities. Furthermore, federal recognition of Native Hawaiians as tribes would raise difficult constitutional issues regarding disparate treatment based on race.

Concerning the question of Native Alaskan lands, the delegation said that, recognizing that many Indian tribes had been unfairly deprived of their lands, Congress had established the Indian Claims Commission in 1946. The Claims Commission heard claims that ordered compensation for takings of land and sub-surface rights. As for the recommendations in the indigenous shadow report, any lands taken under the plenary power doctrine (i.e. without compensation or not pursuant to a treaty), those claims were within the Claims Commission mandate, and tribes had the opportunity to bring such claims for over 50 years now. Regarding the return of sacred lands, in those areas where tribes had jurisdiction, tribes protected their sacred sites by tribal law and custom. With respect to public lands, including those managed by the Department of the Interior, the United States had explained its protection policy of such lands in detail in the report, including providing access to sacred sites, respect for indigenous religious practices, and protecting the physical integrity of such sites. However, in the United States view, these matters were not ones in which the Convention provided guidance or direction.

Regarding the construction of the border fence with Mexico, the delegation observed that if the fence were not constructed on Tohono O’Odham (i.e. tribal) lands, the result would be problematic for the tribe, as there were nearly 1,000 unauthorized border crossings a day through the Tohono O’Odham reservation. When the fence was built, if it did not run through that reservation, that number would increase exponentially, as would crime, environmental impact and strain on tribal infrastructure. The Bureau of Indian Affairs and the Department of Homeland Security were consulting with the Tohono O’Odham Nation on the construction of the fence on their reservation. The discussions had concerned mitigation of the impact to tribal members who crossed the border on a daily basis for social and cultural reasons.

The plenary power doctrine included the exclusive placement of the authority to conduct Indian affairs with the national legislature, to the exclusion of the executive or judiciary, to regulate affairs on this topic. In doing so, the Congress was subject to constitutional limitation including prohibitions against depriving individuals of life, liberty or property without due process of law, or the taking of private property for public use without payment of “just compensation”. The doctrine of discovery provided that discovering nations held fee title to discovered lands, subject to the Indians right of occupancy and use.

On the Declaration on the Rights of Indigenous Peoples, the United States had been disappointed in the ultimate text and felt that the Declaration was neither clear nor capable of being implemented. For example, the provisions on lands and resources could appear to require recognition of the right to the lands historically occupied by indigenous populations. Such a provision was simply not capable of implementation given contemporary realties and existing legal rights in such lands.

In regard to violence against women in Indian Country, the United States recognized that that was a serious problem, and was actively working on numerous fronts to combat it. The United States Attorney General had met just this week with the representatives of tribal organizations to discuss that important issue, among others. Over the past six years, the Department of Justice had provided more than $642 million to tribal government and law enforcement agencies through the Office of Justice Programmes, the Office of Community Oriented Policing Services and, especially, the Office on Violence against Women. The latter Office, since its creation in 1996, had awarded more than $100 million to Indian tribal governments, tribal organizations and coalitions to combat domestic violence, sexual assault, and teen dating violence. In addition, that Office funded broad anti-violence coalitions and grassroots community organizations, often composed of affected women who assumed leadership roles in advocating for change. The Justice Department was currently in the process of establishing a task force to assist in conducting a National Baseline Study to Examine Violence Against Women in Indian Country.

Another important role was played by the Government in prosecuting violence against women in Indian Country, and, in 2006, the Department of Justice had worked with the United States Congress to pass three laws to help protect the safety of women in Indian Country. Those included a habitual domestic offender law; a broadening of federal firearms provisions to restrict gun possession for those convicted of misdemeanours or domestic violence; and the expansion of powers for Indian Affair’s police officers to permit warrantless arrests in cases of misdemeanours and domestic violence, where there was reasonable grounds to believe the offence had been committed.

Regarding the rights of non-citizens, the delegation said that in addition to the many protections afforded to non-citizens under the United States Constitution, as well as state and federal laws, the Supreme Court had held that due process protections set out in the Constitution (right to a fair trial, etc.) applied to all persons, including aliens, within the United States territory. Indeed, United States immigration laws provided ample process to aliens in administrative removal proceedings, including, in most cases, a hearing before an immigration judge during which the alien had the right to representation by counsel, among others. There were also various forms of relief from removal, such as asylum. The alien could appeal an adverse immigration judge decision to the Board of Immigration Appeals, and generally might seek judicial review of the Board’s decision. To support access to counsel by detained aliens in removal proceedings, the Department of Justice administered a pro bono programme for which congress had recently appropriated several million dollars.

In the context of employment, extensive protections applied to non-citizens, in many cases without regard for immigration status. In the context of recruitment, hiring, discharge or termination, with certain exceptions, employers could not treat United States citizens and work authorized non-United States citizens differently based on citizenship status. Undocumented labourers were also protected under federal labour law.

Additionally, all school children in the United States were entitled to free public education, regardless of their immigration status. Finally, emergency medical care and certain non-cash benefits were also available to all persons, the delegation said.

On the Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, the delegation said that the United States had worked hard to create a principled, practical, workable and legally sound document. The document was not “guidance to inform police how to do” racial profiling, as had been suggested. Racial profiling was the invidious use of race by law enforcement. By invidious that was not meant all uses of race by law enforcement. Race might properly be considered by law enforcement when – and only when – there was reliable, relevant and timely information that linked persons of a particular race or ethnicity to that criminal conduct or organization. Racial profiling, which was strictly prohibited by the guidance, involved the generalized use of race or ethnicity. That simply meant that reliance on racial stereotypes – using race as a proxy for criminality, which was both irrational and wrong, was barred by the Guidance. Therefore in making routine or spontaneous law enforcement decisions, such as in the context of traffic stops, law enforcement officers simply could not consider race or ethnicity at all.

On 11 September 2001 backlash issues, the delegation noted that the Civil Rights Division of the Department of Justice had taken affirmative steps to address such crimes against Arab, Muslim, Sikh and South Asian communities through the post-9/11 Backlash Initiative. In addition, since 2002, the Division had appointed a Special Counsel for Religious Discrimination to coordinate and supervise the work of criminal and civil litigating sections on this issue. As a result, from 2001 to 2006 the Division reviewed 82 cases and launched 40 investigations of religious discrimination, compared with one case reviewed and one investigation during the prior six years.

Regarding immigration trends to the United States post 11 September 2001, particularly with respect to Arab and South Asian countries, the delegation said that it had reviewed statistics for fiscal years 1998 to 2006 published by the Department of Homeland Security. While the statistics for Arab and South Asian countries indicated a decrease in non-immigrant admissions for 2002, the vast majority of those countries had seen a steady increase in non-immigrant admissions for 2003 to 2006. In addition, those same trends could be seen with respect to United States non-immigrant issuance worldwide. In 2006, overall non-immigrant visa issuance rose by 8 per cent over the previous year; business/tourist visa issuance rose 12 per cent worldwide, and student visas were up 14 per cent. In addition, processing delays had been cut dramatically, with 97 per cent of qualified non-immigrant visa applications approved within two days of their interview.

With regard to violence against vulnerable women of colour, the delegation said that the United States had seen some of the most vulnerable victims sexually and physically assaulted. For example, in one case, the Department of Justice had prosecuted a Korean-American for forcing hundreds of Asian women to work in a garment factory in American Samoa. One victim had been assaulted by a factory guard who had gouged her eye out. The defendant was ultimately convicted and sentenced to 40 years’ imprisonment while the victim and her children continued to live and work in the United States legally. The Civil Rights Division had increased by almost 700 per cent the number of human trafficking cases filed in the last seven years.

Regarding why there had not yet been compliance with a 28-year-old Chicago school desegregation case, the delegation noted that the United States had vigorously sought to enforce that decree. Partially as a result of the school district’s non-compliance, the United States had gone to court several times in the last few years to seek full compliance.

Concerning the proposed Civil Rights Act of 2008, the delegation noted that it had not yet begun to make its way through the United States legislative process. Among provisions in the bill relevant to the Committee, the draft legislation would reverse the Supreme Court decision in Alexander v. Sandoval and Hoffman Plastics. It would also prohibit mandatory arbitration of employment discrimination claims and allow for unlimited damages in employment discrimination cases.

Regarding the creation of a national human rights institution – which could act as a central organization that would be responsible for coordinating the overall United States effort to address racial discrimination – the delegation said that, while some countries had created single agencies devoted to human rights issues, in the United States, by having separate agencies they had been able to develop particular expertise in specific areas of discrimination and that had worked reasonably well to address the complex and diverse issues in a large country. In addition, the United States Commission on Civil Rights studied and collected information relating to various discrimination issues, examined the adequacy of United States non-discrimination laws, and served as a national clearing house for information regarding discrimination and the denial of equal protection. It also monitored the activities of other federal departments and agencies that had civil rights functions. The Civil Rights Commission regularly issued reports to the President and Congress and made recommendations regarding changes to laws it deemed necessary to effectuate the goal of eradicating discrimination from United States society.

Further Oral Questions Posed by Experts

Mr. Sicilianos, the Rapporteur for the report, said that the distinction between correlation and causation in racially discriminatory outcomes was a subtle one. It seemed to him that the Convention, in Article 1, when it drew a distinction between direct and indirect discrimination tried to overcome that gap by looking at results. On the right to vote, arguing that that rules governing such rights were set out by the states, and not the federal Government, was not an acceptable argument in international law.

Other Experts expressed concerns, among others, that there was no federally funded training programme to raise awareness on the Convention by officials and members of the justice system, and the United States obligations under it.

An Expert said he found the delegations replies too rules-based and programmatic. The fact of the existing racial disparities in areas such as economic status, health and education were the kind of de facto evidence of discrimination that had led the Civil Rights Movement to formulate the need for affirmative action programmes in the first place.

An Expert drew attention to the fact that the United States appeared to have a different interpretation of international law than other States. The idea of international law was not just to regulate, but also to constrain States to abide by the ideas set forth therein. Therefore, if a State’s law was not in accord with a specific area, it was not to be supposed that the State should therefore take a reservation to that area, but that it should adapt its laws accordingly.

Having listened to the United States position on hate speech, an Expert was concerned about the phenomenon that had been pointed out by the United Nations Special Rapporteur on Racism, concerning the “banalization of racist discourse”. That was a danger the United States should take into account.

On the voting issue and others, an Expert said that it was not enough to simply say that certain rights were part of an apparently non-discriminatory provision in the Constitution or other laws. If those provisions had a disproportionately negative effect on racial minorities or other distinct groups of society, it was the Committee’s obligation to raise that issue, and it was the State party’s duty to study that issue, and to take appropriate action to address it.

An Expert was concerned by new immigration policies following 11 September 2001 which had resulted in the tripling of the number of detained immigrants.

Replies by the Delegation

Responding to those questions and others, on the United States position on international law, the delegation said the United States had a “traditional” view of how it undertook its international legal obligations, that was by consent of its legally constituted authorities. For the United States there was a distinction made between recommendations and obligations under international law. So, while the United States did not feel obligated to better inform its officials of the provisions of the Convention, for example, under its terms, that did not mean that that might not be a goal that the United States recognized as worthy, and that it could and should do more to ensure that that was done.

On the danger of the banalization of racist discourse, while the United States might recognize the danger, it was the United States vision that it was a matter of principle that such speech should not be criminalized.

With regard to the correlation/causation distinction, the delegation said that where there were factors other than racial discrimination that were the reasons behind racially disparate outcomes, actors other than the government would have to be involved in finding solutions to those questions. However, in certain areas, under statutory law, it was not necessary to show such causality between race and discriminatory outcomes for the federal government to take action, for example in the employment or voting contexts.

On the alleged 26 per cent of juveniles in jail on life without parole sentences for serious crimes, the delegation said it could not comment on the percentage, as he did not have the figures before him, but it was a matter of dispute whether such sentencing was or was not in contravention of international law.

Further Remarks by Experts

An Expert said that the Committee was disappointed by the United States position on the Declaration on the Rights of Indigenous Peoples. The United States said it was committed to pursuing indigenous rights both in domestically and abroad, but under what principles and standards? The United States rejected the Declaration and it was not a party to ILO Convention No. 69 on Indigenous and Tribal Peoples. Concerning the Cherokee Nation, he had received alarming information that the United States was trying to determine the leadership of that group through imposition by the outside.

An Expert noted a real need for the United States to specifically align the wording of its legislation and policy with the provisions set out in the Convention.

An Expert, while acknowledging the United States right to build a fence along its borders, reaffirmed his point that the process had been accompanied by a heightened racist discourse, in particular in the local communities. He had also been greatly disturbed by reports that those who had furnished water to illegal immigrants had been prosecuted.

Preliminary Concluding Observations

In preliminary concluding observations, LINOS-ALEXANDRE SICILIANOS, the Committee Expert who served as country Rapporteur for the report of the United States, thanked the delegation for its excellent work and well prepared answers to questions raised. He said he would not like to prejudge the final conclusions and recommendations that the Committee would finally adopt.

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For use of the information media; not an official record