Editors’ note: For our series on the 80th anniversary of Executive Order 9066, signed on Feb. 19, 1942, we are republishing a Just Security article on the use of international human rights mechanisms to combat anti-Asian discrimination and violence, originally published on Apr. 2, 2021. An additional author’s note, dated Feb. 18, 2022, discusses the ongoing problem of anti-Asian hate in the United States and its connection to State policies of anti-Asian discrimination, including the incarceration of Japanese Americans during World War II.
Author’s note (Feb. 18, 2022): Tomorrow marks the 80-year anniversary of Executive Order 9066, which effectively authorized the forcible removal and mass incarceration of people of Japanese descent, including U.S. citizens, in concentration camps.
The anniversary follows the brutal killings of Christina Yuna Lee and Michelle Go in New York, the one-year anniversary of the tragic death of Vicha Ratanapakdee, and a spate of hate incidents against Asian Americans and Pacific Islanders in the United States. According to the Stop AAPI Hate coalition, 10,371 anti-Asian incidents, ranging from verbal harassment to physical assault, were reported from March 2020 to September 2021. In San Francisco alone, anti-Asian hate crimes reportedly went up 567% last year. While there is disagreement regarding the racial motivation of some of these incidents, what is clear is that many members of the Asian American and Pacific Islander community, including myself, remain unsettled and fearful.
The recent rise in anti-Asian racism and violence must be situated within America’s ugly 150-year history of State-sanctioned discrimination against Asian Americans and Pacific Islanders—and of course, an even longer history of broader xenophobia and racism. Time and time again, the U.S. government has fomented and perpetuated anti-Asian sentiment, weaponizing in particular its national security apparatus. Examples abound, including the incarceration of Japanese Americans during World War II, the “yellow peril” trope of the Cold War, the systemic targeting and profiling of South Asians since 9/11, the targeting of Chinese academics under the China Initiative, and most recently, anti-Asian fearmongering tied to the COVID-19 pandemic.
In April 2021, I wrote about using international human rights law mechanisms to combat anti-Asian discrimination and violence. Since then, President Joe Biden signed into law the COVID-19 Hate Crimes Act and enacted several other measures to combat racism, xenophobia, and intolerance against Asian Americans, Native Hawaiians, and Pacific Islanders in the United States. These are important steps, but as ongoing incidents of anti-Asian hate show, more is needed. In line with international legal obligations, the United States must protect fundamental rights and freedoms, including the right to life and the security of the person and the right to freedom of expression, without discrimination. Only a human rights-compliant response to combating doctrines of racial superiority and to ensuring adequate redress for past and ongoing harms will help the U.S. government regain its credibility as it espouses human rights values on the world stage.
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Originally published Apr. 2, 2021:
On Tuesday, March 30—two weeks after the tragic slaughter of eight people, including six Asian women, in Georgia—President Joe Biden announced several initiatives to respond to the surge in anti-Asian violence in America. These include a COVID-19 Equity Task Force subcommittee focused on anti-Asian xenophobia; a Department of Justice cross-agency initiative committed to improving data collection and transparency, community outreach, and law enforcement training on anti-Asian violence; and funding for support programs for domestic violence survivors from the Asian American, Native Hawaiian, and Pacific Islander communities.
These are all steps in the right direction. But largely absent from the national conversation about anti-Asian violence is the broader international landscape. The escalating attacks against Asian Americans and Pacific Islanders in the United States are part of a global phenomenon fueled by the COVID-19 pandemic. As United Nations Secretary-General António Guterres warned as early as May 2020, “the pandemic continues to unleash a tsunami of hate and xenophobia, scapegoating and scare-mongering.” Human Rights Watch and others have documented a worldwide rise in anti-Asian attacks since the start of the pandemic, including in Australia, Canada, France, Italy, New Zealand, Russia, and the United Kingdom.
Tackling anti-Asian violence calls for an international response. Where States parties have violated their obligations, they can and should be held accountable. Holding States in addition to individual perpetrators accountable is particularly important as it tackles head-on the systemic and institutional nature of racial discrimination and violence.
The U.N. human rights mechanisms—primarily the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), but also others—offer a valuable framework for understanding the scope of State obligations to combat racial discrimination. They provide potential avenues for holding States parties, including the United States, to account.
Accountability Under the Convention on Elimination of Racial Discrimination
The principle of non-discrimination can be found in all core international human rights instruments, but the prohibition of racial discrimination is most fully expressed in the CERD, which the United States ratified in 1994. As stated in the CERD preamble, the signatories “[r]esolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations.”
With this ambitious purpose in mind, the CERD requires States parties to implement wide-ranging negative and positive obligations. For instance:
- Article 2(1)(c) of the CERD requires States parties to “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.”
- Article 4 requires States parties to “undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of,  discrimination.” According to the Committee on the Elimination of Racial Discrimination—the body of experts tasked with monitoring implementation of the CERD—the requisite “measures” comprise the full gamut of “legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments.”
- Article 5 obliges States parties to “undertake to guarantee,” without racial discrimination, fundamental human rights, including the rights to security of person, public health, freedom of movement and residence, and fair trial.
- Article 6 mandates effective access to procedural and substantive remedies.
- Article 7 obliges States parties to “undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups.” This may entail “information campaigns and educational policies calling attention to the harms produced by racist hate speech,” as well as “training of law enforcement officials in the protection of human rights.”
Under the CERD, all States parties are required to submit regular reports to the Committee on the Elimination of Racial Discrimination explaining how they are implementing the CERD. After the first year of acceding, States parties must report to the committee every two years. The committee then reviews the report and issues its concerns and recommendations—called “Concluding Observations”—on the State party’s compliance.
In addition, where there is sufficient evidence of CERD violations, individuals and States parties may initiate proceedings against a State party in three ways:
- First, under Article 14 of the CERD, individuals or groups of individuals may bring a complaint against any State party that has accepted the competence of the Committee on the Elimination of Racial Discrimination to receive such complaints. The individual(s) must be subject to the jurisdiction of the State party.
- Second, under Article 22, States parties may refer an inter-State dispute concerning interpretation or application of the CERD to the International Court of Justice. Such recourse is available where the dispute is not settled “by negotiation or by the procedures expressly provided for in th[e] Convention.”
- Third, as my colleague Nawi Ukabiala explained in a previous post in the context of the Black Lives Matter movement, under Article 11, States parties can initiate inter-State conciliation procedures against another State party for “not giving effect to the provisions” of the treaty. These procedures may result in an ad hoc Conciliation Commission of five human rights experts issuing a report with their (albeit non-binding) findings and recommendations.
Notably, while the United States has made a reservation to the jurisdiction of the International Court of Justice under Article 22 and has not accepted the competence of the committee to receive individual complaints under Article 14, it has not made a reservation to Article 11, so it could be subject to the inter-State conciliation procedures. It is also subject to Concluding Observations issued by the Committee on the Elimination of Racial Discrimination.
Although neither prospective conciliation findings nor Concluding Observations are legally binding, they would apply crucial moral and social pressure on the U.S. government that would carry substantial weight in the present geopolitical landscape. As others have written, anti-Asian violence has serious foreign policy and national security implications. The credibility of States like the United States espousing human rights values on the international stage has suffered due to a poor human rights track record on multiple issues at home. For instance, China has leveraged such issues—most recently taking the United States to task for systemic racism in a scathing Report on Human Rights Violations in the United States—to deflect from its own human rights violations in Xinjiang.
The findings under the CERD may carry particular weight with the Biden administration, which unlike the Trump administration, has nominated a U.S. representative to the Committee on the Elimination of Racial Discrimination, explaining that this “nomination underscores the value that the Biden administration places on the Committee’s work.”
Several other States facing escalating anti-Asian attacks may also be on the hook under the CERD—including potentially before the International Court of Justice. For instance, the United Kingdom, Italy, Australia, New Zealand, and Canada have all ratified the CERD. None has made a reservation to the jurisdiction of the International Court of Justice under Article 22, or the inter-State conciliation procedures under Article 11. Italy and Australia have also recognized the competence of the Committee on the Elimination of Racial Discrimination to receive complaints from individuals or groups under Article 14.
So who may step up to the plate? Asian States parties to the CERD may have a special interest in initiating inter-State proceedings against States parties failing to live up to their CERD obligations in light of the surge in anti-Asian discrimination. But as Nawi has argued, any State party to the CERD likely enjoys standing to initiate proceedings against another State party, even if it lacks a special legal interest in the alleged dispute. This is because State party obligations under the CERD are likely obligations erga omnes parties, i.e., obligations that each State party owes to its fellow States parties based on “shared values.”
Potential CERD Claims
Although a full-fledged jurisdictional and merits analysis of potential CERD claims per State falls beyond the scope of this post, at first glance, several CERD claims may be viable.
For instance, individuals and/or States could allege incitement through the active propagation of racial hatred by public officials and the failure to sanction. It is well-documented that public officials across the globe have adopted exclusionary and racist rhetoric since the outset of the pandemic. Just as former President Donald Trump stoked anti-Asian sentiment by adopting rhetoric like the “China virus” and “Kung flu”—including on the very night of the Atlanta killings—a governor in Italy claimed that Italians would better handle the pandemic than the Chinese due to Italians’ “culturally strong attention to hygiene, washing hands, taking showers, whereas we have all seen the Chinese eating mice alive.” At least one study has found such State rhetoric to be directly linked to anti-Asian sentiment.
There may also be viable CERD claims stemming from the shortcomings of State party responses, however well-intentioned. For instance, States parties may fail to provide effective access to remedies due to limitations in existing criminal or civil law. In the United States, this underlines the importance of all States adopting hate crime laws—including South Carolina, Arkansas, and Wyoming, which presently have none on the books. Sufficient federal legislation is also vital; this includes the COVID-19 Hate Crimes Act and the No Hate Act.
States parties may also fail to adopt sufficiently wide-ranging policies and programs—not just at the federal level, but also the local level. Grassroots, community-wide measures are part and parcel to the CERD, and equally important as executive and regulatory reforms.
Other Relevant Human Rights Mechanisms
The CERD is but one of several human rights mechanisms that provide for the prohibition of racial discrimination. Others include the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which like the CERD, provide for inter-State and individual complaint mechanisms.
Individuals, groups, civil society organizations, inter-governmental entities, and national human rights bodies may also submit information of alleged abuse to the Special Procedures of the Human Rights Council, including the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.
The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, the Durban Declaration and Programme of Action, and the Camden Principles on Freedom of Expression and Equality also offer critical norms and guidance for ensuring human rights-compliant measures to combat doctrines of racial superiority and systemic racism.
Given the deeply intersectional nature of racial discrimination often combined with discrimination on the basis of gender, disability, and other characteristics, other human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women may also prove relevant. For anti-Asian discrimination in particular, racialized misogyny and hyper-sexualization in contravention of other core human rights instruments are especially commonplace.
The current surge in anti-Asian violence builds on latent prejudices. It is part of the broader trend of discrimination against and scapegoating of racial, ethnic, and other minorities during the pandemic. As Amnesty International and Human Rights Watch have documented, this includes anti-Black discrimination in the United Kingdom, anti-African discrimination in China and France, anti-Roma discrimination in Bulgaria and Slovakia, and anti-Muslim discrimination in India. While the COVID-19 pandemic has exacerbated such discrimination, the existing structures and systems of racism in States may predetermine the groups most vulnerable to abuse.
Now more than ever, independent assessments of systematic violations of State non-discrimination obligations are needed. In the meantime, the threat of potential complaints lodged against States parties should pressure them to strengthen their efforts to bring themselves into compliance with the CERD and undertake a human rights-based response to anti-Asian attacks and other forms of structural racial discrimination.
(The views expressed in this post are solely those of the author and do not necessarily reflect those of her employer or any organizations with which she may be affiliated.)