How Inter-State Procedures in Human Rights Treaties Can Support the Black Lives Matter Movement

Today is Juneteenth; a holiday that Black Americans have long celebrated to commemorate the end of the brutal institution of slavery in the United States 155 years ago. Yet, last week, the world was reminded again, that Black people in America still face brutality. A video recording reveals that last Friday, a police officer shot Rayshard Brooks, an unarmed Black man, twice in the back as he was fleeing. The Atlanta medical examiner has ruled the killing a homicide. This most recent killing, along with those of George Floyd, Breonna Taylor, and many others, have become representative of pervasive injustice in law enforcement in the United States.

The movement that they have inspired continues to evolve. Domestic reformers are receiving unprecedented international support, with protests and marches occurring in solidarity throughout the world. Also, for the first time in decades, racial discrimination against Black people in the United States is being widely discussed within the framework of international human rights law. The calls from American civil society for the United Nations to take action have been met by strong rebukes and calls to action, including by the U.N. Special Rapporteur on Racism, on this site. In perhaps the most dramatic recent development, a group of 54 African nations forced a debate in the U.N. Human Rights Council (UNHRC) on a resolution to appoint a Commission of Inquiry to investigate racism in law enforcement in the United States. Yesterday, the UNHRC postponed the vote on the resolution.

Regardless of whether the UNHRC decides to establish a Commission of Inquiry, Black Lives Matter activists and their supporters will have to decide what comes next. Any reform movement must be sustained by a variety of stakeholders. The masses of protestors and the U.N. are not the only relevant stakeholders whose lasting commitment can help bring about real change. Under classic conceptions of international relations, the most important stakeholders are sovereign States. The United States has ratified two of the most important human rights treaties, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (collectively the “Conventions”).

As I pointed out in a brief article I recently posted on Medium, the Conventions contain inter-State conciliation procedures. Citizens of other nations can push their governments to utilize these procedures to take the United States to task on racial justice issues. Historically, other countries have declined to challenge the United States, a global superpower, on its domestic human rights record. However, the scale and intensity of the global mobilization against racial injustice, coupled with the Trump administration’s demonstrated antipathy toward international human rights law and mechanisms, may provide the necessary impetus to buck this trend.

Apparent Violations of the Conventions

There is compelling evidence that the United States is not in compliance with its obligations under the CERD and the CAT.

The CERD prohibits conduct that has the “purpose or effect” of discriminating based on race (Article 1(1)). Thus, intent to discriminate is not required. State Parties to the CERD are required to actively root out racism; to “condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms” (Article 2(1)). Further, State Parties must “guarantee the right of everyone, without distinction as to race … the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution” (Article 5(b)).

As the recent killings tragically remind us, there is extensive evidence of racially discriminatory police brutality in the United States. The wave of highly publicized police killings in the 2010s, many of which were captured on video, gave rise to mass demonstrations and reform movements in civil society. They also generated various projects and studies to compile and analyze data on the phenomenon like Mapping Police Violence and Fatal Force by the Washington Post.

The data paints a bleak picture. It indicates that while Black people in the United States are 1.3 times more likely to be unarmed than White people, they are 3 times more likely to be killed by police. A recent academic study shows that between 2011 and 2014, unarmed Black people were almost 3.5 times more likely to be shot by police than unarmed White people and, in some parts of the United States, unarmed Black people were nearly 20 times more likely to be shot than armed White people. Another study shows that between 2010 and 2015, police were 3.6 times more likely to use force in encounters with Black people than in encounters with White people. A New York State Task Force Report from 2010 indicates that, between 1981 and 2009, Black off-duty police officers were eight times more likely to be killed in a mistaken‐identity, police-on-police shooting than White off-duty officers were. So, as the CERD Committee has observed, there is compelling evidence that the United States has failed to uphold its obligations under the CERD to adopt a policy of eliminating racial discrimination and guarantee the right to security of the person without racial distinction.

The CAT prohibits the infliction of physical or mental pain or suffering by public officials with the specific intent to achieve, among other things, intimidation, coercion, or discrimination (Article 1(1)). Critically, it also requires State Parties to, among other things, take effective measures to prevent and prosecute torture (Articles 2(1) and 7).

As Michele AlexanderBryan Stevenson, and others have more eloquently explained, the systematized, targeted enforcement of criminal laws against Black people in the United States, often with lethal force, and often for non-existent or petty offenses, can really only be understood as the successor of the Jim Crow system as a method of social control, coercion, and intimidation. However, it would not be necessary to establish this proposition to demonstrate violations of the CAT. Here, the video evidence and victim testimonies that have emerged in the last decade could go a long way in providing color to the statistical evidence and demonstrating that the infliction of pain and suffering for purposes of intimidation is pervasive. It is difficult to justify much of this violence as “inherent or incidental to lawful sanctions” under Article 1(1) of the CAT because the degree of force is often so disproportionate to the danger the suspect poses to the police or public. Moreover, even after a steady stream of video recorded, high profile violations, the problem persists and United States prosecutors only elect to indict in 1% of fatalities involving police officers. As the CAT Committee has observed, all of these circumstances suggest that the United States’ is not upholding its obligations to prevent and prosecute torture.

Inter-State Conciliation Procedures Under the CERD and CAT

Conciliation is one of the principal means for the pacific settlement of international disputes. It normally involves the consensual referral of the dispute to a special body tasked with examining the evidence and issuing non-binding recommendations. Both the CERD and the CAT provide for conciliation before the monitoring committees they establish.

Articles 11–13 of the CERD contain an inter-State conciliation procedure by which a State Party can file a complaint called a “communication” against another State Party that is “not giving effect to the provisions of th[e] Convention.” This process was invoked for the first time in 2018, with three CERD conciliation proceedings initiated that year. The CERD does not require State Parties to file declarations recognizing the competence of the CERD Committee under these provisions and the United States has not made any reservations to its ratification of the CERD that would preclude the Committee from entertaining an inter-State communication. Therefore, the CERD Committee would typically have jurisdiction to entertain a communication against the United States by any of the other 181 State Parties to the CERD.

If the State Parties do not resolve the dispute within six months from the date of the communication, then either party can refer the matter back to the CERD Committee. According to its limited practice, first, the Committee will receive written submissions from the parties on jurisdiction and admissibility and invite a representative of each party to make oral submissions at the Committee’s next session. The Committee will then issue decisions on jurisdiction and admissibility. If it does not dismiss the complaint, the Chairman of the Committee will appoint an ad hoc Conciliation Commission of five human rights experts before which the parties will seek to resolve the dispute consensually. The parties make submissions on the merits of the dispute to the Commission. Once the Commission has fully considered the matter, it makes non-binding findings and recommendations in a report, which the CERD Committee will transmit to the parties. Within three months of receiving the report, the parties must inform the CERD Committee whether they have accepted the recommendations. Thereafter, the CERD Committee is required to disseminate the report and the parties’ responses to all State Parties to the CERD.

Article 21 of the CAT similarly provides for an inter-State conciliation procedure to resolve complaints by a State Party “that another State Party is not fulfilling its obligations under th[e] Convention.” Article 21 of the CAT only applies between State Parties that have filed a declaration recognizing the competence of the CAT Committee in this respect. The United States has filed such an Article 21 declaration. Therefore, the CAT Committee would typically have jurisdiction to entertain complaints against the United States by any State Party to the CAT that has also made an Article 21 Declaration. Although over 60 countries have made Article 21 Declarations, there have been no publicly known instances in which the inter-State procedure has been invoked.

The provision on inter-State procedures in Article 21(1)(h) of the CAT are similar to those in the CERD. However, under the CAT, if the parties are unable to resolve the dispute, the CAT Committee deals with the matter itself, rather than appointing an ad hoc conciliation commission. More importantly, the proceedings are subject to confidentiality requirements. Moreover, the CAT does not expressly direct the CAT Committee to make findings and recommendations. Nor does it expressly direct the Committee to transmit a report to anyone other than the State Parties involved.

All State Parties Have Standing to File Communications against the United States

State Parties to the CERD and CAT probably do not need any special legal interest in the United States’ compliance with its obligations in order to initiate the conciliation procedures in either of the Conventions. This is because the relevant obligations in the CERD and the CAT are likely obligations erga omnes partes. As the International Court of Justice (ICJ) recently reiterated in its Provisional Measures Order in Gambia v. Myanmar, obligations erga omnes partes are obligations in a multilateral convention that each State Party owes to one another based on “shared values.” In Belgium v. Senegal, the ICJ characterized as erga omnes partes the obligations concerning the punishment of torture in the CAT. It is likely that the ICJ would similarly characterize the provisions in the CERD concerning the condemnation and elimination of racial discrimination because the prohibition on racial discrimination is one of the first erga omnes obligations that the ICJ recognized in its seminal Barcelona Traction decision in 1970.

The Exhaustion of Local Remedies Requirement May be Inapplicable

Article 11(3) of the CERD and Article 21(1)(c) of the CAT require a State Party to show that local remedies have been exhausted prior to pursuing inter-State conciliation. This showing may be a bit more complex than standing and success would likely depend on how specific claims were framed under the Conventions. However, there are various arguments that could be invoked to demonstrate that the exhaustion of local remedies rule is inapplicable or has been satisfied, which I do not address in detail here. Suffice it to say that exhaustion requirements are generally considered inapplicable if local remedies are futile or ineffective. In cases of serious and systematic human rights violations, some human rights bodies, such as the African Commission on Human and Peoples’ Rights and the European Court of Human Rights, have recognized a presumption of the ineffectiveness of local remedies. Similarly, in Ukraine v. Russia, the ICJ held that the local exhaustion rule did not apply because Ukraine alleged a pattern of violations of the CERD.

Data from Mapping Police Violence indicates that between 2013 and 2019, police killed an average of nearly 278 Black people in the United States every year, and 259 in 2019. There is a case to make that this evidence is indicative of serious and systematic violations of the human rights guaranteed in the Conventions.

What could Inter-State Procedures do to Promote Accountability and Reform?

Inter-State CERD proceedings could lead to the type of sweeping findings of systematic violations of the Conventions that United States courts are unwilling or unable to make. One of the greatest challenges domestic reformers face is convincing policymakers, and the general public, that racial discrimination is a problem and illegal, when United States courts say that it’s not even happening. Under United States constitutional doctrine, reflected in cases like Washington v. Davis, illegal discrimination requires a showing of intent to discriminate. Satisfying this exceedingly high legal standard is an immense challenge, even in individual cases. Moreover, in many instances, victims or their survivors have no avenue for real redress due to the protective doctrine of qualified immunity for police and other government officers. Prevailing in a domestic lawsuit alleging nation-wide, systematic, racial discrimination in law enforcement is implausible for these reasons, among others.

In inter-State proceedings under the CERD, the ad hoc Conciliation Commission, unburdened by the intent doctrine, would have far more latitude to make findings and recommendations with respect to a communication. The CERD Committee is probably the most authoritative body on racial discrimination in international relations. Adverse findings by a CERD Conciliation Commission, which would be generally available to the public, could be a powerful affirmation of the human rights of Black people in the United States and an emphatic attestation to the need for drastic reforms that could be leveraged by those currently demanding change. Policymakers may also be guided by the specific findings and recommendations in charting a path forward. Moreover, because the prohibition of racial discrimination is a jus cogens norm, all States have an obligation to cooperate to stop serious violations of it. Foreign governments seeking to fulfill their own international legal obligations could effectively invoke a CERD report in bilateral and multilateral diplomatic arenas to promote racial justice in the United States.

Inter-State proceedings under the CAT would also likely be of substantial utility, even though they are confidential, and the CAT Committee might not make publicly available findings and recommendations. Like the prohibition on racial discrimination, the prohibition on torture is a jus cogens norm. All States have an obligation to cooperate to bring serious violations of it to an end. Too many examples demonstrate that Black people in the United States continue to suffer violations of the prohibition against torture, notwithstanding previous efforts to prevent them. Therefore, States should consider means by which they can cooperate to bring that suffering to an end, including pressuring the United States to adopt reforms in coordinated inter-State proceedings.

The United States may ignore the recommendations that emerge from the proceedings or even refuse to participate in the proceedings at all. However, that would not necessarily prevent the CERD Committee from making publicly available findings and recommendations. Perhaps, more importantly, inter-State proceedings provide an invaluable opportunity to engrave the issue of racial justice in America on the international relations agenda for years to come, helping to ensure that it continues to command the attention of the international community long after the protests have dissipated.

Conclusion: An Opportunity for Lasting Allies

In sum, the initiation of inter-State conciliation proceedings alone, under either convention, could send a powerful and symbolic message about the need for reform. The Conventions provide an important platform for foreign governments to encourage the United States to seriously confront its racial justice issues and genuinely commit to lasting change. For the multitudes of protestors that have taken to the streets around the world in solidarity with Black Lives Matter, inter-State proceedings under the CERD and the CAT can provide a platform for their governments to make concrete demands on their behalf.

Editor’s Note: The views expressed in this post are solely those of the author and should not be considered to reflect the views held by his employer.

Image: Protesters march through the city during a protest in support of the Black Lives Matter movement on June 14, 2020 in Wellington, New Zealand. The event in Wellington was organised in solidarity with protests in the United States following the killing of an unarmed black man George Floyd at the hands of a police officer in Minneapolis, Minnesota. (Photo by Hagen Hopkins/Getty Images)

 

About the Author(s)

Nawi Ukabiala

Nawi Ukabiala is an associate at Debevoise & Plimpton LLP in New York, where his practice focuses on international dispute resolution and public international law. Follow him on Twitter (@nawi616).