Today, I issued a statement joined by over 40 United Nations Independent Human Rights Expert mechanisms, on the national uprising in the United States against police brutality and systemic racial injustice. Many of us also joined national calls for urgent action to ensure accountability for the deaths of George Floyd, Ahmaud Arbery, Breonna Taylor, and many others. One reason it is important to look beyond the borders of the United States in the face of demands for seismic change on the racial justice front is that international human rights norms require and offer the foundation for a better system than the one currently in place in this country.
A now widely articulated criticism or concern is that the legal and policy frameworks that are supposed to provide accountability for and prevent racially discriminatory police misconduct are themselves part of the problem. As Fourth Amendment expert Devon Carbado has highlighted, U.S. constitutional doctrine, for example, “expressly authorizes or facilitates the very social practice it ought to prevent: racial profiling.” Law will not end structural racial injustice — but it can and should play an important part in the process. At the very least, law should not be part of the problem, and in the United States it clearly is. Part of the thought and action to chart solutions to this problem should include greater attention and commitment to the United States’ existing racial justice and equality legal obligations under international human rights law.
The United States has ratified the most comprehensive global anti-racial discrimination treaty—the International Convention on the Elimination Against Racial Discrimination (ICERD). It only did so in 1994, almost thirty years after the treaty came into effect. National human rights organizations and even local social movements in Los Angeles have pushed for U.S. compliance with ICERD in their advocacy to bring an end to racial injustice in the policing context. In its last review of the United States, the body tasked with monitoring compliance with this treaty reiterated its longstanding concern that the very definition of racial discrimination in U.S. federal law and judicial doctrine does not comply with the comprehensive approach required by the treaty. The monitoring body also criticized racial profiling and excessive use of force by the police in the United States, and the “Stand Your Ground” laws that have been implicated in racially discriminatory unlawful killings such as that of Trayvon Martin.
At least one avenue going forward should be to push back against the sort of exceptionalism that implicitly treats existing domestic law as a high watermark for achieving justice and equality, when this law falls short even of global human rights anti-racism standards.
The point is that as momentum builds to rethink and reform law and policy in order to achieve more racially just and equitable outcomes, U.S. policymakers and lawyers should treat international human rights law as a resource, as well as a source of binding legal obligations. Recent events in the United States’ engagement with global anti-racism norms and institutions do not bode well. The United States has failed to comply with its obligations to report back to the monitoring body of ICERD, and recently refused to support the reappointment of leading human rights antiracism expert, Gay McDougall, to serve on this body. At least one avenue going forward should be to push back against the sort of exceptionalism that implicitly treats existing domestic law as a high watermark for achieving justice and equality, when this law falls short even of global human rights anti-racism standards that U.S. civil rights leaders helped establish.