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The Convention on the Elimination of All Forms of |
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PART II -- INFORMATION RELATING TO ARTICLES 2 TO 7 B. U.S. Reservations, Understandings and Declarations To ensure that U.S. law and policy were consonant with the obligations that it would assume under the Convention, the United States entered certain reservations, understandings and declarations to the Convention at the time of ratification. These related, inter alia, to: (a) the Convention's prohibitions concerning advocacy and incitement, which to a certain extent are more restrictive than U.S. constitutional guarantees of free expression and association, (b) the Convention's requirements to restrict the activities of private persons and non-governmental entities, which in some instances lie beyond the reach of existing U.S. law, and (c) the express extension of the Convention's restrictions to all levels of political organization, which implicates the delicate relationship between the state and Federal governments in the U.S. political system. While these differences were primarily ones of approach rather than substance, each nonetheless required clarification in the context of U.S. ratification of the Convention. In making these clarifications, the United States took particular note of Article 20, which precludes reservations which are "incompatible with the object and purpose of the Convention" or "the effect of which would inhibit the operation of any of the bodies established by the Convention." The United States believes its reservations, understandings and declarations, which are an essential element of its consent to be bound by this instrument, are compatible with its object and purpose; they also do not inhibit the operation of any bodies established by the Convention. The United States fully supports the goals of the Convention. In any event, paragraph 2 of Article 20 provides an authoritative method of determining whether any reservation is incompatible or inhibitive in relation to this Convention; namely, formal objection thereto by at least two-thirds of the States Parties to the Convention. None of the conditions imposed upon U.S. ratification of this Convention have been objected to in that manner. 1. Freedom of Speech, Expression and Association Article 4 of the Convention expressly requires States Parties to condemn all propaganda and all organizations based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form. States Parties are further required to take immediate and positive measures to "eradicate all incitement to, or acts of, such discrimination," inter alia, by (a) punishing the dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, and acts of violence or incitement to acts of violence, as well as the provision of assistance to racist activities, including financing; (b) prohibiting organizations and activities which promote and incite racial discrimination, including participation in such organizations and activities; and (c) preventing public authorities or institutions, whether national or local, from promoting or inciting racial discrimination. Article 7 imposes an undertaking on States Parties to take measures to combat prejudice and promote tolerance in the fields of teaching, education, culture and information. These provisions reflect a widely held view that penalizing and prohibiting the dissemination of ideas based on racial superiority are central elements in the international struggle against racial discrimination. The Committee itself has given a broad interpretation to Article 4, in particular emphasizing in General Recommendations I (1972) and VII (1985) that the mandatory requirements of Article 4(a) and (b), are compatible with the rights of freedom of opinion and expression. Many other States Parties to the Convention have enacted and enforced measures to give effect to these requirements. As a matter of national policy, the U.S. government has long condemned racial discrimination, and it engages in many activities both to combat prejudices leading to racial discrimination and to promote tolerance, understanding and friendship among national, racial and ethnic groups. Such programs include those under the authority of Title VI of the Civil Rights Act, the Fair Housing Act, the Bilingual Education Act, the Mutual Educational and Cultural Exchange Act of 1961, the International Education Act (Title VI of the HEA of 1965), and the National Foundation on the Arts and the Humanities Act of 1965. Also, under U.S. law, federal tax money cannot be used to support private entities (such as schools) that practice racial or ethnic discrimination. Further, the Hate Crimes Statistics Act of 1990 mandates collection by the Justice Department of data on crimes motivated by, inter alia, race. However, American citizens applaud the fact that the First Amendment to the U.S. Constitution sharply curtails the government's ability to restrict or prohibit the expression or advocacy of certain ideas, however objectionable. Under the First Amendment, opinions and speech are protected without regard to content. This is a cornerstone of American society that has as much resonance with regard to modern forms of communication like the Internet as with more traditional modes of communication. Certain types of speech, intended and likely to cause imminent violence, may constitutionally be restricted, so long as the restriction is not undertaken with regard to the speech's content. For example, several federal statutes punish "hate crimes," i.e., acts of violence or intimidation motivated by racial, ethnic or religious hatred and intended to interfere with the participation of individuals in certain activities such as employment, housing, public accommodation, use of public facilities, and the free exercise of religion. See, e.g., 18 U.S.C. sec. 241, 245, 247; 42 U.S.C. sec. 3631. An increasing number of state statutes are similarly addressed to hate crimes, and while they too are constrained by constitutional protections, the U.S. Supreme Court has recently determined that bias-inspired criminal conduct may be singled out for especially severe punishment under state law. In two recent cases, the U.S. Supreme Court has addressed first amendment issues in the context of hate crimes legislation. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the municipal ordinance in question made it a misdemeanor to "place on public or private property a symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Court held that the statute unconstitutionally restricted freedom of speech on the basis of its content. Notably, the Court did not find it unconstitutional to criminalize "hate speech" per se. Instead, a majority of the Court held that a jurisdiction may not select only some kinds of hate speech to criminalize while leaving other kinds unrestricted. Then, in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Court addressed the issue of enhanced penalties for crimes motivated by prejudice. Under the relevant state law, an individual who was convicted of aggravated assault (an offense which normally carried a penalty of two years imprisonment) was sentenced to an additional four years imprisonment because his crime had been racially motivated. The Wisconsin Supreme Court had found the statute to be in violation of the First Amendment, as interpreted by the U.S. Supreme Court in R.A.V. v. City of St. Paul, because it singled out the defendant's biased thoughts and penalized him based on the content of those thoughts. On appeal, the U.S. Supreme Court reversed the judgment and upheld the statute as Constitutional. In a unanimous opinion, the Court held that while the St. Paul ordinance had (impermissibly) targeted expression, the Wisconsin enhanced-penalty statute was aimed at unprotected (indeed, criminal) conduct. In subsequent decisions, federal and state courts have followed this distinction, generally upholding statutes which punish specific behavior motivated by bias. For example, a federal appellate court sustained the criminal prosecution under federal civil rights laws of a defendant who had burned a cross on a Black family's lawn, distinguishing that act done with intent to intimidate from similar acts meant to make a political statement. United States v. Stewart, 65 F.3d 918 (11th Cir. 1995), cert. denied sub nom. Daniel v. United States, 516 U.S. 1134. In T.B.D. v. Florida, 656 So.2d 479 (Fla. 1995), cert. denied, 516 U.S. 1145 (1996), Florida's highest court upheld a statute making it a misdemeanor to place a "a burning or flaming cross, real or simulated" on the property of another without permission. During the drafting of Article 4, the U.S. delegation expressly noted that it posed First Amendment difficulties, and upon signing the Convention in 1966, the United States made a declaration to the effect that it would not accept any requirement thereunder to adopt legislation or take other actions incompatible with the U.S. Constitution. A number of other States Parties have conditioned their acceptance of Article 4 by reference to the need to protect the freedoms of opinion, expression, association and assembly recognized in the Universal Declaration of Human Rights. In becoming a party to the International Covenant on Civil and Political Rights in 1992, the United States faced a similar problem with respect to Article 20 of that treaty. In part because the Human Rights Committee had adopted a similarly broad interpretation of that article in its General Comment 11 (1983), the United States entered a reservation intended to make clear that the United States cannot and will not accept obligations which are inconsistent with its own Constitutional protections for free speech, expression and association. A similar reservation was therefore adopted with respect to the current Convention. It reads: 2. Private Conduct[T]he Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States. Given the breadth of the definition of "racial discrimination" under Article 1(1), the obligation imposed on States Parties in Article 2(1)(d) to bring to an end all racial discrimination "by any persons, group or organization," and the specific requirements of paragraphs 2(1)(c) and (d) as well as Articles 3 and 5, the Convention may be viewed as imposing a requirement on a State Party to take action to prohibit and punish purely private conduct of a nature generally held to lie beyond the proper scope of governmental regulation under current U.S. law. a. Fourteenth Amendment Since the time of the Civil Rights Cases, 109 U.S. 3 (1883), the U.S. Supreme Court has consistently held that the Fourteenth Amendment does not reach purely private conduct. Thus, the Fourteenth Amendment can only be invoked to protect against conduct that is the result of "state action." The state action requirement of the Equal Protection Clause reflects a traditional recognition of the need to preserve personal freedom by circumscribing the reach of governmental intervention and regulation, even in situations where that personal freedom is exercised in a discriminatory manner. In determining whether "state action" is present in a given case, the critical inquiry under U.S. domestic law is whether the conduct of a private party is "fairly attributable" to the state. Lugar v. Edmonson, 457 U.S. 922, 937 (1982). Under that test, mere governmental involvement with private parties is often insufficient to trigger a finding of state action. For example, in and of itself, government licensing and regulation of private entities is not state action. Moose Lodge No. 107 v. Irvins, 407 U.S. 163 (1972) (licensing); Jackson v. Metropolitan Edison, 419 U.S. 345 (1974) (regulation). The same is true for government contracting. Blum v. Yaretsky, 457 U.S. 991 (1982). However, state employees acting under color of law are generally considered "state actors." West v. Atkins, 487 U.S. 42 (1988). In addition, the Supreme Court has held that the following constitute state action: the private performance of "public functions," Marsh v. Alabama, 326 U.S. 501 (1946); judicial enforcement of private discriminatory arrangements such as restrictive covenants on property, Shelley v. Kraemer, 334 U.S. 1 (1948); certain forms of governmental assistance or subsidies to private parties, Norwood v. Harrison, 413 U.S. 455 (1973); and state encouragement of discrimination by private parties, Reitman v. Mulkey, 387 U.S. 369 (1967). b. Thirteenth Amendment On the other hand, the Thirteenth Amendment's prohibition against slavery and involuntary servitude encompasses both governmental and private action. Civil Rights Cases, 109 U.S. 3, 20 (1883). The U.S. Supreme Court has held that Congress may regulate private conduct under sec. 2 of the Thirteenth Amendment, which provides that "Congress shall have the power to enforce this article by appropriate legislation." Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). Such power includes determining what constitutes the "badges and incidents of slavery and the authority to translate that determination into effective legislation." See also United States v. Kozminski, 487 U.S. 931, 942 (1988) (discussing Thirteenth Amendment right to be free from involuntary servitude). Although Jones could be read as authorizing Congress to regulate a broad array of harms on the ground that they were a form of servitude and slavery, the Court has not had the opportunity to define the outer limits of Jones. The Court has intimated, however, that "some private discrimination . . . in certain circumstances" is subject to legislation under Section 2 of the Thirteenth Amendment. See Norwood v. Harrison, 413 U.S. 455, 470 (1973). For instance, the Reconstruction Era civil rights statutes discussed above (42 U.S.C. sec. 1981, 1982 and 1983, which create a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution), have been used to prohibit private actors from engaging in racial discrimination in a variety of activities, including the sale or rental of private property, see Jones, 392 U.S. at 413; the assignment of a lease, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); and the grant of membership in a community swimming pool, see Tillman v. Wheaton-Haven Recreation Ass'n. Inc., 410 U.S. 431 (1973); the making and enforcement of private contracts, see Patterson v. McLean Credit Union, 491 U.S. 164, 272 (1989); see also Runyon v. McCrary, 427 U.S. 160 (1976) (reaching refusal of private school to admit Black students). Finally, section 1985(3) has been applied to some private conspiracies. Compare Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993) (demonstration against abortions clinics was not within the scope of statute) with Griffin v. Breckenridge, 403 U.S. 88 (1971) (conspiracy to deprive Blacks of right of interstate travel was within the reach of statute). c. Commerce and Spending Powers In addition to the Thirteenth Amendment, Congress may regulate private conduct through the Commerce and Spending powers it possesses under Article I of the Constitution. For example, it was under the Commerce Clause that Congress passed Title II and Title VII of the 1964 Civil Rights Act, which prohibit private entities from discriminating in public accommodations and employment. See Katzenbach v. McClung, 379 U.S. 294 (1964). The Fair Housing Act is similarly grounded in the Commerce Clause. Further, it was under Congress' Spending Power as well as under its authority under Section 5 of the Fourteenth Amendment, that Congress passed Title VI of the 1964 Civil Rights Act, which prohibits discrimination by public and private institutions that receive federal funds. Lau v. Nichols, 414 U.S. 563 (1974). Arguably, the reference to "public life" in the definition of "racial discrimination" in Article 1(1) of the present Convention might be read to limit the reach of its prohibitions to actions and conduct involving some measure of governmental involvement or "state action." The negotiating history of the Convention is far from clear on this point, however, and it is not possible to say with certainty that the term "public life" as contemplated by the drafters is synonymous with the permissible sphere of governmental regulation under U.S. law. Moreover, the Committee appears to have taken an expansive view in this regard, finding in the Convention a prohibition against racial discrimination perpetuated by any person or group against another. Accordingly, some forms of private individual or organizational conduct that are not now subject to governmental regulation under U.S. law could well be found within the sphere of "public life" as that term is interpreted under the Convention. Accordingly, it was appropriate to indicate clearly, through a formal reservation, that U.S. undertakings in this regard are limited by the reach of constitutional and statutory protections under U.S. law as they may exist at any given time: 3. Dispute Settlement[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. The United States understands that the identification of the rights protected under the Convention by reference in Article 1 to fields of "public life" reflects a similar distinction between spheres of public conduct that are customarily the subject of governmental regulation, and spheres of private conduct that are not. To the extent, however, that the Convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of Article 2, subparagraphs (1)(c) and (d) of Article 2, Article 3 and Article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States. In accordance with its long-standing policy, the United States also conditioned its adherence to the Convention upon a reservation requiring its consent to the exercise of the jurisdiction of the International Court of Justice over any dispute that might arise between it and another State Party. The text of this reservation is identical to those recently taken upon ratification of other treaties, including the ICCPR: 4. Federalism[W]ith reference to Article 22 of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case. Given its Constitutional roots and its embodiment in the extensive statutory provisions enacted by Congress over the decades, federal anti-discrimination law is pervasive and reaches federal, state and local levels of government. Where Constitutionally permissible, it provides the basis for broad regulation of racially-discriminatory conduct at the private level. Nonetheless, because the Congress is a legislature of limited jurisdiction, it must find authority for its statutes somewhere in the U.S. Constitution, e.g., through Section 5 of the Fourteenth Amendment, the Commerce Clause or the Spending Clauses. In those limited circumstances where the Constitution does not permit the application of federal anti-discrimination laws, state and local governments have some authority to act. Under the Tenth Amendment to the Constitution, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Thus, the state and local governments retain a fairly substantial range of actions within which to regulate or prohibit discriminatory actions. In some instances, state and local governments have exercised their inherent authority by adopting statutes and administrative regulations providing powerful and effective protections against, and remedies for, private discrimination based on race, color, ethnicity and national origin. Indeed, in some states, courts have interpreted their state constitutions to provide even broader protections against discrimination than under federal law. Because the fundamental requirements of the Convention are respected and complied with at all levels of government, the United States concluded there was no need to preempt these state and local initiatives or to federalize the entire range of anti-discriminatory actions through the exercise of the Constitutional treaty power. Indeed, there is no need for implementing legislation providing the Federal government with a cause of action against the constituent states to ensure that states fulfill the obligations of the Convention. Subject to the constraints imposed by our federal system, the Federal government already has the authority under the Constitution and the federal civil rights laws to take action against states to enforce the matters covered by the Convention. It is important to stress that this understanding is not a reservation. It does not condition or limit the international obligations of the United States. Nor can it serve as an excuse for any failure to comply with those obligations as a matter of domestic or international law. Instead, it addresses a specific and sensitive aspect of the fundamental governmental structure of the United States. As an aspect of the modality of implementation in domestic law, this understanding is entirely within the discretion of the United States as a State Party and contravenes no provision of the Convention. In ratifying the International Covenant on Civil and Political Rights in 1992, the United States addressed this issue through adoption of an interpretive understanding, the effect of which was to clarify that the United States will carry out its obligations in a manner consistent with the federal nature of its form of government. A similar understanding was adopted for the Torture Convention as well as for the current Convention: 5. Non-Self-Executing Treaty[T]he United States understands that this Convention shall be implemented by the Federal government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal government shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention. In ratifying the Convention, the United States made the following declaration: This declaration has no effect on the international obligations of the United States or on its relations with States Parties. However, it does have the effect of precluding the assertion of rights by private parties based on the Convention in litigation in U.S. courts. In considering ratification of previous human rights treaties, in particular the U.N. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1994) and the International Covenant on Civil and Political Rights (1992), both the Executive Branch and the Senate have considered it prudent to declare that those treaties do not create new or independently enforceable private rights in U.S. courts. However, this declaration does not affect the authority of the Federal government to enforce the obligations that the United States has assumed under the Convention through administrative or judicial action.[T]he United States declares that the provisions of the Convention are not self-executing. As was the case with prior human rights treaties, existing U.S. law provides protections and remedies sufficient to satisfy the requirements of the present Convention. Moreover, federal, state and local laws already provide a comprehensive basis for challenging discriminatory statutes, regulations and other governmental actions in court, as well as certain forms of discriminatory conduct by private actors. Given the adequacy of the provisions already present in U.S. law, there was no discernible need for the establishment of additional causes of action or new avenues of litigation in order to guarantee compliance with the essential obligations assumed by the United States under the Convention. This declaration has frequently been misconstrued and misinterpreted. Declaring the Convention to be non-self-executing in no way lessens the obligation of the United States to comply with its provisions as a matter of international law. Neither does it contravene any provision of the treaty or restrict the enjoyment of any right guaranteed by U.S. obligations under the Convention. There is, of course, no requirement in the Convention that States Parties make it "self executing" in their domestic law, or that private parties be afforded a specific cause of action in domestic courts on the basis of the Convention itself. The drafters quite properly left the question of implementation to the domestic laws of each State Party. The United States is aware of the Committee's preference for the direct inclusion of the Convention into the domestic law of States Parties. Some non-governmental advocacy groups in the United States would also prefer that human rights treaties be made "self-executing" in order to serve as vehicles for litigation. The declaration reflects a different choice, one in favor of retaining existing remedies for private parties. [more] [end of document]
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