Author: Dr. Thamil Venthan Ananthavinayagan, PhD (NUI Galway), LL.M. (Maastricht University) Lecturer for International Law at Griffith College, Dublin/Ireland
In 2016 the Working Group of Experts on People of African Descent (hereafter: the Working Group) visited the United States of America (hereafter: USA), one of the many special procedures under the auspices of the United Nations Human Rights Council, in order to assess the treatment and situation of people with African Descent in the country. With their report, the Working Group concluded that
[C]ontemporary police killings and the trauma that they create are reminiscent of the past racial terror of lynching. Impunity for state violence has resulted in the current human rights crisis and must be addressed as a matter of urgency.
The current atmosphere in the USA reveals a quite blunt manifestation of a deeply divided and troubled society, a society that is haunted by its past and offers a bare view of the remnants of slavery that preoccupies the public discourse and society’s consciousness.
Slavery is over, but the roots of exploitation are still encoded into DNA of the USA, revealing dark and twisted memories. The election of Barack Obama did not usher in an era of post-racial justice. On the contrary, it laid bare the unaddressed blood-soaked agonies of the past. In 2018, it seems that the USA has never transitioned into a post-racial society as it is divided as ever before. What is, now, the role of the United Nations human rights machinery to address the past, to provide remedy to human rights violations and to help towards a post-racialized society?
The role of the United Nations human rights machinery and the United States of America:
The United Nations human rights machinery consists of two strands, the charter-based and treaty-based bodies. The USA has signed nine human rights treaties, while ratifying five of them. It has accepted the inquiry procedure to one treaty, namely the inquiry procedure under the Convention against Torture.
The second strand is the charter-based body, i.e. the United Nations Human Rights Council (succeeding the United Nations Human Rights Commission) which was created in 2006. At its inception in 2006, the Bush administration refused to join the United Nations Human Rights Council due to various reservations the administration had towards this new body. The USA joined the United Nations Human Rights Council under the Obama administration and was elected three times to it. In June of 2018 the Trump administration decided to leave the United Nations Human Rights Council.
Meanwhile, the Office of the High Commissioner for Human Rights (OHCHR) has streamlined activities for the promotion of human rights. Promotional activities are weaved through all parts of the United Nations human rights machinery, charter- and treaty-based bodies alike. Fact-finding, information sharing, cooperation, constructive dialogue, technical assistance, capacity building, peer support and review, can be effective tools in promoting human rights within states.
The problem, of course, is the human-rights protection mandate. Developing and promoting human rights are aimed at the medium- to long-term. They require dialogue, cooperation and constructive engagement. Protecting human rights focuses on the short-term. States are far less willing to engage with protection activities because they impact upon the immediate situation within a country. And a key weakness of United Nations human rights bodies is that, while they are set up for dialogue and engagement, they lack the teeth to effectively protect rights where a state is not willing to cooperate. Unlike the United Nations Security Council, human rights bodies do not have enforcement powers. Unlike international financial institutions, the United Nations human rights machinery does not have any leverage over states that fail to comply with their obligations. That is one main flaw in the system, and one that cannot easily be resolved. This article does not warrant a lengthy discussion surrounding the United Nations human rights machinery at large and a discussion of the historical evolution from the United Nations Human Rights Commission to the United Nations Human Rights Council.
The visit of the United Nations Working Group of Experts on People of African Descent to the USA
The Working Group was established in 2002 by the Commission on Human Rights with its resolution 2002/68, one of the many Special Procedures under the United Nations Human Rights Council. The creation of this Special Procedure was triggered by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, South Africa in 2001. When it adopted the Durban Declaration and Programme of Action, it requested the Commission on Human Rights
[t]o consider establishing a working group or other mechanism of the United Nations to study the problems of racial discrimination faced by people of African descent living in the African Diaspora and make proposals for the elimination of racial discrimination against people of African descent.
The Working Group’s mandate, as established under the aforementioned resolution was renewed by five more resolutions. In 2008, the United Nations Human Rights Council entrusted the Working Group :
(a) To study the problems of racial discrimination faced by people of African descent living in the diaspora and, to that end, gather all relevant information from Governments, non-governmental organizations and other relevant sources, including through the holding of public meetings with them; (…)
(e) To address all the issues concerning the well-being of Africans and people of African descent contained in the Durban Declaration and Programme of Action;
(f) To elaborate short-, medium- and long-term proposals for the elimination of racial discrimination against people of African descent, bearing in mind the need for close collaboration with international and development institutions and the specialized agencies of the United Nations system to promote the human rights of people of African descent (…)
At the invitation of the Government of the USA, the Working Group of Experts undertook a visit to the country from the 19th to 29th of January 2016. The members of the delegation were Mireille Fanon Mendès-France, Sabelo Gumedze and Ricardo Sunga III. On this opportunity, the Working Group visited Washington, D.C.; Baltimore, Maryland; Jackson, Mississippi; Chicago, Illinois; and New York City. The Working Group met with representatives of several government departments and offices. They also met hundreds of African Americans from communities with a large population of people of African descent living in the suburbs, as well as with lawyers, academics and representatives of non-governmental organizations. The Working Group was, however, not given access, contrary to the terms of reference for special procedure mandate holders, to the Mississippi State Penitentiary (Parchman Farm). Concluding this visit, the Working Group issued its report to the international human rights community by presenting it to the United Nations Human Rights Council at its 33rd Session between the 13th to 30th of September 2016. The Working Group, not only describes the situation, highlights good practices, identifies the main challenges, but also makes concrete recommendations. This is, evidently, an important aspect of the Special Procedures: they provide an impartial and unbiased view of an independent expert view on human rights issues, offering an important venue also for lawyers to lodge urgent appeals and engage directly during on-site visits to increase the international attention of domestic cases.
When issuing the report after its visit to the USA, the Working Group acknowledged that the experience of racially motivated discrimination is routine for African Americans and it hinders their effective enjoyment of economic, social and cultural rights. The fact is that a particularly heavy share of the burden of current economic changes is borne by poor African Americans, which is not simply an artifact of the uncompetitive labor market position of many black workers and the civil rights revolution of the 1960s has by no means eradicated racial discrimination in American social and economic life. For example, the Working Group, through authoritative interaction with governmental entities and non-governmental organizations, established that the racialized history has its reverberating impact on the contemporary human rights violations. By way of example, the Working Group ascertained that
[T]he cumulative impact of racially motivated discrimination faced by African Americans in the enjoyment of their rights to education, health, housing and employment, among other economic, social, cultural and environmental rights, has had serious consequences for their overall well-being. Racial discrimination continues to be systemic and rooted in an economic model that denies development to the poorest African American communities.
Not only here, but the Working Group ascertained problematic issues such as, inter alia, “racial steering” leading towards gentrification of neighborhoods, limited access to healthy food and precarious employment of African Americans. But in particular, the Working Group dedicated an extended examination and observation of the justice system, by pointing out at one point out that
[K]illings of unarmed African Americans by the police is only the tip of the iceberg in what is a pervasive racial bias in the justice system. The Working Group heard testimonies that African Americans face a pattern of police practices which violate their human rights: they are disproportionately targeted for police surveillance and experience and witness public harassment, excessive force and racial discrimination.
International standards offer a yardstick, a clear indication of what needs to be achieved to improve human rights in the USA. It was Malcolm X who had enunciated that by referring to human rights (rather than invoking civil rights), Black Americans were in a position to internationalize their movement and take their grievances beyond the domestic jurisdiction of the United States.
The Special Procedure mandates, to this end, provide a “[m]icrocosm for the issue of rights proliferation.” Key aspect for them is to have some effect and provide guidance in short time frame. For this purpose, the Working Group concluded their visit with observing best practices and effective measures in the USA, but also offering key recommendations to the USA for remedying the domestic human rights violations. A comprehensive reproduction of the recommendations will not be possible here. Among the many important aspects that were stressed and recommendations were issued upon, however, was the need for transitional justice.
All in all, by being and “[g]rounding themselves in situations of mural urgency, rapporteurs hold the potential to operationalise abstract human rights norms in specific domestic contexts, giving those norms practical meaning.” As it was illustrated, Special Procedures translate universal principles into localized solutions for change, while also having reverberating effect on the international plane. Finally, visits of the Special Procedures, such as the examined one, make an unique contribution to the international human rights system, identify the crises and provide valuable international expertise to find solution to encounter them.
Current climate on race in the USA
Race as a prescriptive schema, as established by early Europeans in the United States, reproduced and reinforced institutional and individual sphere. The question of race is also fueled and maintained by the current administration.
Two distinct moments in history were missed to remedy the mark of racial injustice: first, the Reconstruction period following the Civil War and, second, the Civil Rights Era. Unsurprisingly, the Working Group had pointed out impunity, lack of accountability, and absence of dialogue which create an atmosphere of distrust and further entrench injustice towards African Americans. With, according to a recent poll, a majority of the population saying that race relations have worsened under the current administration, Connie M. Razza poignantly sums up:
[S]ocial exclusion is a set of decisions and actions” by the “economically and politically powerful” to “[deploy] white supremacist and racist ideas to further concentrate their wealth and power. They have deputized others—including people who are not white—to enforce the social exclusion of black people through simple and seemingly individual acts, as well as through sweeping rules.
Majoritarian resistance in the USA to international human rights engagement
Kathleen Cleaver elucidates that leaders of the United States have attempted to “[m]inimize the international, broad concept of human rights that motivated us and turn it into something smaller and less threatening.” Usually, any government will not approve on the report in its entirety. However, as Mertus has stated, the United States tends to place its own sovereignty above international human rights standards because it applies those norms in a selective and self-serving manner, both domestically and internationally.
Many community members, human rights activists, understand the impact and long-term consequences of trans-Atlantic slave trade, Jim Crow laws, lynchings, housing and labor market discrimination and police brutality, which figure in the contemporary discourse in the USA. The international community, predominantly epitomized by the United Nations human rights machinery, can and must concentrate on decreasing the gravity and scope of racist practices, prevailing racial injustice and the extent to which their effects continue to this day. The United Nations offers solutions, ideas, innovations in a communitarian spirit where dialogue prevails and engagement means support and understanding. The impetus provided by the human rights engagement must usher in follow-up efforts on the ground.
These follow-up efforts, eventually, must translate into local organizing efforts. Lawyers, activists, academics, community organizers et al. must be all involved in this endeavor so that international human rights engagement can make meaningful impact. The schism between internationalists and isolationists in the USA over the United Nation’s human rights intervention, is largely due to the suspicion over any alien intervention (a prevailing note that is prevalent in other countries as well), a reflex recalling memories of domestic challenge posed by civil rights groups, but in particular also with regards to a certain sense of self-indulged human rights superiority that exists in the USA.
Nonetheless if the mark of racial injustice must vanish from the USA then engagement with the international community is needed more than ever before.
 United Nations General Assembly, Report of the Working Group of Experts on People of African Descent on its mission to the United States of America, A/HRC/33/61/Add.2, fn. 68.
 Sir Nigel Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity or Competition?’, Human Rights Quarterly, Vol. 25, No. 4 (2003), p.883.
 Office of the High Commissioner for Human Rights, Ratification Status for United States of America, online at: https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=187&Lang=EN, last visited 12th of August 2018.
 For more information: Rosa Freedman, ‘The United States and the United Nations Human Rights Council: An Early Assessment’, St. Thomas Law Review, Vol.23, 2010, pp.89-620.
 Office of the High Commissioner for Human Rights, List of past members of the Human Rights Council, online at: https://www.ohchr.org/EN/HRBodies/HRC/Pages/PastMembers.aspx, last visited 12th of August 2018.
 For more information: The Economist, ‘The art of the empty gesture: America’s spat with the UN Human Rights Council,, 23 June 2018, Vol.414 (9094) and Heinrich-Boell-Stiftung North America, ‘The United States and the Human Rights Council – a tumultuous relationship?’, online at: https://us.boell.org/2017/09/13/united-states-and-human-rights-council-tumultuous-relationship, last visited 12th of August 2018.
 United Nations General Assembly Resolution, A/RES/48/141, fn. 4.
 Henry J. Steiner, ‘International Protection of Human Rights’, in: Malcolm D. Evans (ed.), International Law, (5th edition 2018, Oxford University Press, Oxford), p. 797.
 Kirssa Cline Ryckman, ‘Ratification as accommodation? Domestic dissent and human rights treaties’, Journal of Peace Research, Vol. 53(4), (2016), p. 583.
 Office of the High Commissioner for Human Rights, E/CN/4/RES/2002/68.
 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Section II. Victims of racism, racial discrimination, xenophobia and related intolerance, fn. 7, p. 23.
 For more information: CHR 2003/30, 2008/HRC/RES/9/14, 2011/HRC/RES/18/28,2014/HRC/RES/27/25 and A/HRC/RES/36/23.
 United Nations General Assembly, 2008/HRC/RES/9/14, fn. a-f.
 Supra note 1, Working Group, fn.1.
 Supra note 1, Working Group, fn. 2.
 Supra note 1, Working Group, fn. 3.
 Supra note 1, Working Group, fn. 5.
 United Nations Human Rights Council, online at: https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session33/Pages/33RegularSession.aspx, last visited 12th of August 2018.
 Office of the High Commissioner for Human Rights, Urgent appeals, online at: https://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/Appeals.aspx, last visited 14th of August 2018; FLAC Ireland, A guide for engaging with UN Special Procedures mandate holders, online at: https://www.flac.ie/download/pdf/guide_for_engagement_with_un_special_procedures_mandate_holders.pdf, last visited 14th of August 2018.
 Supra note 1, Working Group, fn. 43.
 Supra note 1, Working Group, fn. 50-54.
 Supra note 1, Working Group, fn. 43.
 Supra note 1, Working Group, fn.49, 51, 55.
 Supra note 1, Working Group, fn.24.
 Malcolm X, ‘Not just an American problem, but a world problem’, Address delivered in the Corn Hill Methodist Church, Rochester, New York, 16 February 1965.
 Rosa Freedman& Jacob Mchangama, ‘Expanding or Diluting Human Rights?: The Proliferation of United Nations Special Procedures Mandate’, Human Rights Quarterly, 38, (2016), p. 192.
 Supra note 3, Rodley, p. 907.
 For example, the Working Group welcomed the “My Brother’s Keeper and White House Initiative to narrow the educational gaps and increase African American livelihood chances, see supra note 1, Working Group, fn.61.
 Supra note 1, Working Group, fn.90-93.
 Joanna Naples-Mitchell, ‘Perspectives of UN special rapporteurs on their role: inherent tensions and unique contributions to human rights’, The International Journal of Human Rights, 15:2, (2011), p.243.
 Ibid p. 244.
 Jesse Washington, ‘African-Americans see painful truths in Trump victory’, online at: https://theundefeated.com/features/african-americans-see-painful-truths-in-trump-victory/, last visited 14th of August 2018.
 Desmond S. King and Jennifer M. Page, ‘Towards transitional justice? Black reparations and the end of mass incarceration, Ethnic and Racial Studies, 41:4, 2018, p. 741.
 Supra note 1, Working Group, fn. 31, 46, 47.
 National Tracking Poll Politico, online at: https://www.politico.com/f/?id=00000165-16f9-d25f-abef-37fbe0ca0001, last visited 14th of August 2018.
 Connie M. Razza,’Social Exclusion: The Decisions and Dynamics that Drive Racism’, Demos, May 2018, online at: http://www.demos.org/sites/default/files/publications/Social%20Exclusion, last visited 14th of August 2018.
 Susie Day and Laura Whitehorn, ‘Human rights in the United States: The unfinished story of political prisoners and COINTELPRO’, New Political Science, 23, (2001), p. 289.
 US Mission to Geneva, Dialogue with Working Group of Experts on People of African Descent: “[T]he United States has made great progress toward countering racial discrimination, xenophobia, and related forms of intolerance, but we acknowledge much remains to be done. Although we may not agree with all of its factual or legal conclusions, we thank the Working Group for its findings from its constructive visit.” Online at: https://geneva.usmission.gov/2016/09/26/dialogue-with-working-group-of-experts-on-people-of-african-descent/, last visited 14th of August 2018.
Julie Mertus, Bait and Switch: Human Rights and U.S. Foreign Policy. (1st edition 2004, Routledge, New York), p. 33.
 Justin Hansford and Meena Jagannath, ‘Ferguson to Geneva: Using the Human Rights Framework to Push forward a Vision for Racial Justice in the United States after Ferguson’, Hastings Race and Poverty Law Journal, 12, (2015), p. 154.