Why reporting matters and the way reporting functions

It is widely known that one of the largest obstacles that the United Nations faces in achieving total compliance from its member states to international human rights law. This obstacle has its roots in Article 2 Section 7 of the Universal Declaration of Human Rights, which is essentially a loophole clause that alleviates a state’s from its obligation to prevent and prosecute human rights abuses through claims of “domestic sovereignty”– a state’s belief that their national law is the “supreme law of the land” and that it is thus not obligated to obey any other law, including international law. When a state’s commitment to domestic sovereignty overrides its international treaty law and human rights obligations, that state believes itself absolved of its responsibility to prevent and prosecute human rights if they believe, or can claim, that doing so forces them to act beyond the scope of their law, making it difficult to achieve human rights compliance at a global level. So, how can international human rights law achieve human rights practice at a local level?

Nation states are inclined to see the growing reach of international human rights law as a threat to their domestic sovereignty. States are not eager to submit to international law, for a number of reasons (wariness of obligating themselves to a higher international legal system, inconvenience, etc.), so the possibility that law can bring about human rights remedies has been limited in the past and in the present. International law was founded upon the notion that the nation states would be the social actors to which the international system speaks (subject to its jurisdiction), but that has changed, as we see the UN and NGOs bringing attention to human rights violations committed by private, individual actors. If the state government refuses to act, then what can be done to provide human rights victims a remedy?

Fortunately, the state government is not the only actor in the international human rights system, and if the government refuses to act, then “shame” can be mobilized through monitoring and reporting mechanisms to influence non-state actors, like non-governmental and not-for-profits organizations that specialize in relevant social justice issues, as well as the public at large. “Shame” which has been defined as using moral condemnation of a perpetrating social actor to compel that actor to provide remedy to a human rights violation outside formal legal institutions and processes, and “shame” is the invisible but potent force behind reporting and monitoring mechanisms that bring human rights abuses to public attention. Monitoring involves compiling and documenting human rights abuses– often in the form of reports– that are then published and somehow made available to the public through various venues such as periodicals, magazines, and online publications available through NGO websites.[1] International scrutiny has become more effective in the human rights system, because monitoring empowers the non-state actors like NGOs within countries seeking redress for human rights violations with the capacity to mobilize public opinion and force change from bottom-up rather than top-down (UN resolutions and the law) mechanisms.

Reporting and the monitoring of human rights abuses shames governments at the international and local levels into addressing human rights abuses and gives communities access to another venue for being heard when governments refuse to respond. A little known fact is how reporting and monitoring by African American civil rights leaders and interests has played in shaping the UN and the human rights covenants that emerged after World War II. When African American civil rights leaders in the NAACP realized that they had reached an impasse with the U.S. government, who refused to acknowledge or provide redress for the violences and civil and political violations committed against African Americans—voting laws, segregation, lynchings, etc. — they altered their strategy from campaigning for civil rights and turned to the emerging international human rights system to protest for human rights for African Americans.[2] While the political context in which the United Nations developed (the association of the rights enumerated in the ICESCR economic rights in general being associated with communism during the Cold War) ultimately prevented African American civil rights leaders from successfully incorporating the entirety of the changes for which they campaigned, their involvement in the shaping of the UN demonstrates how international human rights system provides a forum for human rights victims that transcends the limitations of local and national governments. At present the UN treaties that various members of the General Assembly ratify obligate them to deliver periodic reports (Universal Period Report, a mechanism established in 2006 by the General Assembly) to ensure that they are in compliance with treaty terms, and various NGOs take it upon themselves to report the human rights abuses that states either intentionally or unintentionally overlook in their own reports.

Public opinion is a powerful instrument in the human rights system and the sway that it holds in human rights policy-making is amplified by the age in which we live– the digital era. Monitoring aids in rousing public opinion and the demand for remedies to exposed human rights abuses that lend itself to “strategies of witnessing” (making human rights victims’ claims public) and thus becoming one among many “new platforms” for human rights action.”[3] With the lightning fast transfer of information at the tip of one’s fingers today, publicity about human rights abuses has a greater potential of reach the national and international community, rousing outrage and resulting in demands for redress. Some scholars are also finding that the use of social networking, monitoring and documentation of human rights abuses is a natural complement to the top-down global society approach (which relies on formal UN action).[4] The bottom-up domestic public opinion-oriented actions and the top-down global, formal and legal actions exert dual pressures from both sides to compel global and domestic policy-makers to make policy changes that adequately address human rights abuses.

It is crucial to note that the United States has tendency to “shame” other countries for their human rights violations while holding itself as the leader of the free world and democracy, even though its claims to moral superiority are made in stark contradiction to the many human rights violations that have been reported within its borders. This reality only emphasizes the critical role of reporting as a way to use “shame” to pressure the United States to live up to its self-proclaimed “leader of the free world.” For example, the Danziger Bridge shooting, that occurred in New Orleans in the aftermath of Hurricane Katrina, in which members of the city’s police department opened fire on unarmed civilians trying to escape from the hurricane ravaged part of New Orleans into a neighboring city, was brought to light and made actionable due in part to the outrage of the local actors who then pressured the authorities to address that instance of egregious human rights violations. The city of Berkeley is also the first city to agree to file reports with the UN on human rights abuses. Moreover, within the sphere of “business and human rights,” an emerging branch of human rights practice, human rights reporting has been shown to be effective in using “shame” to compel image conscious shareholders and consumers to induce corporations to amend corporate policy that, among many things, improves labor conditions and strengthens environmental regulations.

Despite the firewall between international human rights law and the U.S. government, public disapproval and shame have been successfully compelling local authorities to take actions to address local human rights violations. There have been various efforts at local levels to incorporate international human rights into local government, especially in the case of San Francisco government’s incorporation of CEDAW.[5] However, these instances at local initiative to implement human rights into local government are few and far. An experiment conducted in New York City reaffirmed that there are still considerable obstacles at the governmental level to implementing human rights law in local governments.[6] The study suggests that “human rights can provide important political resources to U.S. social movements […] in a diffuse way far from the formal system of human rights law.” Attempts to have hard-line policies preventing human rights violations devolved into the implementation of “best practices” procedures at the behest of government officials and organizations that were reluctant to implement more formal laws. The study, however, did suggest that the city benefited from the cultivation of human rights awareness that the “best practices” model.

The question that now remains is how to utilize reports to mobilize more people and more compliance to human rights at a local level. As with the scholars who are re-envisioning how “shame” can be combine with “hope” in the practice of human rights, the best course of action may be to combine both monitoring and reporting and outreach to organizations out in the field who deal daily with social and economic issues and have relationships with local government to address human rights. Monitoring exposes human rights violations and mobilize the outrage of the public, while local organizations that specialize in particular issues (such as poverty, food deserts, racial discrimination, domestic shelters, etc.) that have experience on the ground with the kind of human rights issues that arise and who possibly constitute particular interest groups and influence policy-making in local government. Organizations that specialize in human rights reporting and monitoring might thus consider partnering with those local organizations so that deliberate policy actions to remedy those violations might be informed by human rights monitoring, and the abuses documented by monitoring organizations can be given voice on a more actionable arena.

“any distinction, exclusion or restriction made on the basis of gender which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women of human rights and fundamental freedoms in political, economic, social, cultural, civil and other fields, irrespective of their marital status and on an equal basis with men.”

To read the full ordinance, click here.

In 1994 the United States ratified the United Nations human rights treaty, the International Convention on the Elimination of All Forms of Racial Discrimination. The Convention defines racial discrimination broadly as “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” In part, the Convention requires countries to

• Condemn racial discrimination and to pursue by all appropriate means and without delay a policy to eliminate racial discrimination;
• Condemn all propaganda and organizations which are based on ideas or theories of superiority of one race;
• Guarantee the rights of everyone without distinction as to race, color, or national or ethnic origin, to all civil and political rights and to all economic, social and cultural rights, in particular the right to housing; the right to public health, medical care, social security and social services; and the right to education and training.

Under this treaty the United States has committed itself to preparing accurate and comprehensive reports on racial discrimination in the United States. These reports are to be presented to and reviewed by the Committee on the Elimination of Racial Discrimination of the United Nations on a periodic basis. Thc first such report was due November 20, 1995. It has not yet been filed. The second U.S. report was due November 20, 1997. It has not yet been filed.

The Committee has established general guidelines for the preparation of the reports. The first part is to provide general background information, specifically

• the status of racial discrimination in the country, including statistics based on ethnicity and national origin
• the policy and legal framework of eliminating racial discrimination in domestic law, and relevant information on the demographic composition of the population.

In the past the Committee has sought information on

• life expectancy, infant mortality, and
• the social and economic standing of minority groups.

In the second part of the report the Committee is particularly interested in

• barriers to the implementation of the substantive provisions of the Convention,
• measures taken to review governmental policies, on both the national and local levels, which may inhibit implementation of the Convention, and
• measures taken to train, encourage and promote an integrationist multiracial society.

Professors, scholars, and non-governmental organizations have an opportunity to make major contributions to the reporting process. Pres. Clinton, on Dec. 10, 1998, directed the new Interagency Working Group to complete the preparation of the official U.S. report. The Working Group says it welcomes information. The Committee on the Elimination of All Forms of Racial Discrimination will receive the written concerns from non-governmental organizations.

The power of the reporting process and of the dialog with the U.N. Committee is not to be underestimated in the protection and promotion of human rights. The Committee on the Elimination of All Forms of Racial discrimination has said, “The reporting system is the most decisive element in the monitoring process with which the Committee is charged, and it is the principal means by which pressure is brought to bear upon States parties to fulfill the substantive obligation to eliminate racial discrimination in all its forms. The latent nature of racial discrimination, its persistence and its susceptibility to sudden flare ups and accentuation make it imperative that monitoring should be rigorous….” (CERD, March 1984).

The United Nations has been concerned with the increasing racial intolerance, discrimination and hate around the world, and in particular in Europe and the United States. In 1993 a Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance was appointed by the United Nations Commission on Human Rights. The Special Rapporteur, Mr. Maurice Glele-Ahanhanzo, made two trips to the United States in 1994 and 1995 and has prepared summary reports on racial discrimination in this country.

The scope of the Special Rapporteur’s mission was broad, covering not only civil and political rights, but economic and social rights. His investigations into racial and ethnic intolerance covered African Americans, Latinos, Native Americans, Asians, Arabs, and Jews. It is important to note that the Special Rapporteur’s sources of information included not only various agencies and departments in the Federal, state and local governments, but non- governmental organizations including the American Civil Liberties Union, Meiklejohn Civil Liberties Institute, the Carter Center, the Center for Democratic Renewal, the African American Human Rights Foundation, the National Black Police Association, the World Council of Churches “Racism is a Violation of Human Rights” Campaign, The American-Arab Anti-Discrimination Committee, and the Mexican-American Legal Defense and Education Fund.

In a preliminary report the Special Rapporteur found that ” racism and racial discrimination persist in American Society, even if not as a result of deliberate policy on the part of the United States Government.” (E/CN.4/1995/78/Add.l). Further, the Special Rapporteur found “sociological inertia, structural obstacles and individual resistance hindering the emergence of an integrated society based on the equal dignity of the members of the American nation and willing to accept ethnic and cultural pluralism. Vested interest, competing influences and the power struggle between the various political and social components of American Society also provide opportunities for residual racism and racial discrimination to linger on.”

The Special Rapporteur presented twelve substantive recommendations to the United States, including the Revitalization of affirmative action programs, the recognition of the “indissoluble link” between civil and political rights and economic, social and cultural rights, equal funding for education, education of the media regarding the propagation of stereotypes, and human rights education in particular for law-enforcement personnel.

The United States is now on notice that the United Nations is concerned about the increasing racial intolerance in this country. Professors, scholars, and non-governmental organizations can use the momentum from the Special Rapporteur’s investigations and reports to urge the United States to go beyond acknowledgement of racial discrimination and take more vigorous steps toward its eradication through the use of the United Nations reporting procedures.