The United States has ratified the International Convention on the Elimination of All Forms of Racial Discrimination (the “CERD”), which contains a much more robust anti-discrimination framework than currently exists in United States law. The CERD not only prohibits conduct that has the purpose of discriminating based on race, but also conduct that has such an effect. As United Nations Special Rapporteur E. Tendayi Achiume explained in her recent post on justsecurity.org, that means that the CERD does not countenance the system of racial profiling authorized by United States constitutional doctrine. It also means that the CERD is not limited by the intent requirement embraced by the United States Supreme Court in cases like Washington v. Davis, which often results in lenient scrutiny for laws and government practices that have a grossly disproportionate impact on minorities.
The United States has also ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”), which prohibits the infliction of physical or mental pain or suffering by public officials for, among other things, “any reason based on discrimination of any kind.” Like the CERD, prevailing interpretations of the anti-discrimination provision in the CAT do not require intentional discrimination.
The lack of an intent requirement in the anti-discrimination dictates of the CERD and the CAT is of profound significance. Since intent to discriminate is immensely difficult to prove, one of the greatest challenges domestic reformers face is convincing policy-makers, and the general public, that illegal discrimination is a problem when the courts say that it’s not even happening. Yet the evidence of the disparate impact of police brutality on Blacks in the United States is overwhelming. For example, a 2015 study demonstrates that unarmed Blacks are 3.5 times more likely to be shot by police than unarmed whites and, in some parts of the United States, unarmed Blacks are nearly 20 times more likely to be shot by police than armed whites. Similar patterns are revealed in data from MappingPoliceViolence.com, the Washington Post, and various academic studies. So United States Supreme Court constitutional doctrine notwithstanding, there is compelling evidence that the United States is in violation of its international human rights obligations.
The prohibitions on torture and racial discrimination are jus cogens norms with erga omnes character. That means that States have both the obligation to cooperate to secure their recognition and an interest in challenging their violation wherever they occur. States can use the inter-State complaint procedures in the CERD and the CAT to hold the United States accountable for its failure to honor its human rights obligations. This could lead to a range of salubrious outcomes, including authoritative findings and recommendations affirming the human rights of Blacks in the United States, and provide a powerful tool in promoting domestic accountability and reform.
There is a legacy of discourse between civil rights movements in the United States and the international community. In 1947, W.E.B. Dubois and the NAACP famously sent the United Nations an Appeal to the World. In response to the video of the gruesome killing of George Floyd by Minneapolis Police Officers on May 25, 2020, the NAACP, victims’ families, and others are again appealing to the world, and the world is responding. At this moment, one effective method for domestic civil society to keep momentum for reform going is appealing to the governments of the world to honor their own obligations to cooperate to end racial injustice by invoking the inter-State procedures available in the CERD and the CAT.
Nawi Ukabiala is a public international law practitioner and associate at Debevoise & Plimpton LLP in New York. The views expressed belong solely to the author.
Article originally appearing on Medium.