The Special Measures Mandate of the International Convention on the Elimination of all Forms of Racial Discrimination: Lessons from the United States and South Africa

The International Convention on the Elimination of all Forms of Racial Discrimination is the United Nations main treaty elaborating on Article 1 of the Charter of the United Nations which emphasizes the importance of the prohibition of racial discrimination. CERD has been ratified by 173 countries, which is evidence of its importance in the protection of human rights. CERD went beyond the non-discrimination language of the Charter, however, in two very important ways: 1) it established a requirement for special measures aimed at ensuring the development and protection of certain racial groups or individuals belonging to them to guarantee them the full and equal enjoyment of human rights as well as prohibiting and preventing racial discrimination; and 2) it established equality as a goal alongside the prohibition of racial discrimination. With respect to the prohibition and prevention of racial discrimination, article 2 sets forth a series of affirmative steps that States Parties must take towards its elimination. With respect to the second, it specifically requires that special measures must be adopted for ensuring equality, not only of individuals but of groups. The guarantee of equality in human rights is mentioned in article 2(2) and is further elaborated on in article 5, which provides among other things that State Parties undertake to guarantee equality before the law and in the enjoyment of a list of rights. The latter include political, civil, and economic social and cultural rights. Governments are required to use special measures not only to prevent racial discrimination, but to achieve equality in the enjoyment of these rights. Despite the clear language of these mandates, special measures have been controversial in many countries, though such manifestations have been varied. For example, in the United States, a number of states have prohibited the use of race in making decisions about admissions to universities and the courts have restricted use of race in both employment and education cases unless to remedy intentional discrimination. In South Africa, questions have been raised regarding the effectiveness of some affirmative action programs and concerns have been raised that it does not benefit those who are most disadvantaged from injustice. In Brazil, conflicts arise from the fact that a large percentage of the population is of mixed race with the result that the use of quotas is highly controversial. The controversies that surround the issue may benefit from the elaboration of the obligations by the Committee on the Elimination of Racial Discrimination (“Committee”). Clarification of the requirements may aid governments as they develop and implement programs that are more focused on the goals set forth in the treaty. Further, de facto discrimination along with the continued existence of bias are reasons for continuing to use race-based affirmative action programs, even while the focus on disadvantage and social class may also serve similar purposes for attaining equality. The article gives an overview of the major issues related to the CERD mandate on special measures and then reviews the experience of affirmative action in the United States and South Africa – both its practice and judicial decisions. These two countries are chosen because of their history of de jure discrimination and their very different approaches to affirmative action. The author suggests, however, that despite those differences lessons can be gleaned from those approaches that provide guidance to the CERD Committee as it develops more concrete standards for the special measures mandate of CERD. In addition to identifying standards that the CERD Committee has enunciated in its review of States Parties reports, the article reviews elements addressed by other U.N. bodies. The article concludes with suggestions for other areas that require further elaboration based on the experiences in the United States and South Africa. These include: 1) the need for affirmative action as long as racial disparities exist in education and employment; 2) the need to address bias through the special measures requirement; 3) the concept of diversity as a helpful means for achieving equality, though it should not replace race based measures for achieving that goal; 4) the need to carefully tailor the measures to the specific goals being sought; and 5) that special measures are only one means for addressing the effects of discrimination and inequality. In August 2009, the CERD Committee adopted General Recommendation 32 which provides its views on the special measures mandates requirements under the treaty. The article includes a short summary of the relevant provisions. The article will be published in English and in Spanish in the Summer 2010 issue of the ILSA Journal of International and Comparative Law and is meanwhile available at http://ssrn.com/abstract=131793