Excerpted From: Ian M. Kysel and G. Alex Sinha, Executing Racial Justice, 71 UCLA Law Review Discourse 2 (2023) (108 Footnotes) (Full Document)


KyselSinhaLast August, the United States went before a United Nations (UN) committee to defend its performance implementing the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). As a party to the convention since 1994, the United States is bound to report to the Committee on the Elimination of Racial Discrimination (Committee) on a biennial basis. At the end of last August, following hearings in Geneva, the Committee issued Concluding Observations on the United States' compliance with the treaty. The results were mixed. Although the Committee welcomed the United States' reengagement with the reporting process, it also pressed the United States to make dozens of substantive changes to its laws, policies, and budgeting priorities.

On one hand, as the Committee acknowledged, President Biden has made the pursuit of racial equity a centerpiece of executive branch policy. The day he took office, President Biden issued an executive order (EO) "advancing racial equity and support for underserved communities through the federal government." Within a week, he had expanded on this commitment through additional EOs, targeting racial inequities in housing, incarceration, tribal rights, and discrimination against Asian Americans and Pacific Islanders. By the end of his first few months in office, he had issued several more orders aimed at ending racial discrimination in numerous areas, from health care to law enforcement. President Biden also quickly countermanded some of President Trump's initiatives--such as a ban on diversity and sensitivity training--that would have undermined this renewed executive commitment to racial justice.

On the other hand, the United States remains racked by racial inequality and discrimination. People of color--especially Black, Latinx, and indigenous people--suffer markedly worse life outcomes than white people across myriad important metrics. People of color experience homelessness and poverty at far greater rates; have less access to health care, educational opportunities, and employment; and endure manifestly worse treatment within the criminal legal system. For almost thirty years, the United States has been obligated under international law to eradicate such inequities, and it has indisputably failed to do so.

It is therefore conspicuous that the Biden administration's (Administration) flurry of EOs--and the public remarks that accompanied them--omit any acknowledgment that these executive actions target problems the United States is legally-bound to address under the ICERD. The Administration is no doubt aware of its human rights obligations. In fact, President Biden has publicly commemorated the International Day for the Elimination of Racial Discrimination --a longstanding UN observance that recognizes the urgency of implementing the ICERD and ending discrimination. Yet the Administration describes its interest in eliminating systemic racial disadvantage in the United States as legally optional, a matter of what "our Nation deserves" rather than a goal it is obligated by international law to achieve. None of its racial justice orders even acknowledge the existence of the ICERD--or any other human rights obligations, for that matter.

President Biden deserves credit for working to place racial justice at the center of his agenda, especially after his predecessor did the opposite. But this Essay argues that the Administration is missing an important opportunity to enhance the role of the executive branch in the process. More specifically, this Essay argues that the Administration should augment its mechanisms for implementing the ICERD and subsume its numerous executive racial justice initiatives under this framework. Although the Administration has misleadingly framed executive actions as optional, President Biden has embraced a program that is both a valuable and underrated approach to the implementation of human rights treaties: targeted, unilateral, executive action.

Perhaps in response to skepticism from the U.S. Supreme Court, much of the scholarship and commentary on U.S. obligations under non-self-executing treaties like the ICERD has focused on the extent to which such treaties should bind courts, or state and local officials. Yet the executive branch of the federal government retains underappreciated power to implement treaties unilaterally. Although executive action alone cannot rectify racial injustice in the United States, or bring the United States fully into compliance with the treaty, the executive branch controls numerous systems and operates many programs that bear directly on the United States' ICERD obligations. (Of course, under international law, all branches and levels of government must comply with--and can put a country in breach of-- binding obligations. ) Additionally, the executive's orientation toward issues of racial justice serves communicative, symbolic, and modeling functions. Finally, Republicans assumed control of the U.S. House of Representatives just months ago. As a purely pragmatic matter, executive action to implement the ICERD offers much more promise right now than federal legislation.

Part I provides a brief overview of the ICERD and its history, noting the most significant recent recommendations of the Committee to the United States. Part II provides an overview of scholarship on limits to the enforcement of human rights treaties that are not self-executing under U.S. law, noting the limited attention paid to the potential importance of executive branch action in fostering compliance. Part III outlines several specific ways that the Administration could drastically expand the contexts in which the White House and cabinet agencies foster compliance with the ICERD. Part IV closes with a brief evaluation of the relative advantages and potential limitations of augmenting the role of the executive branch in ensuring treaty compliance as proposed.

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President Biden's public embrace of racial justice is a welcome development both on the merits and because it is legally required under the ICERD. This Essay argues that President Biden should explicitly and substantively anchor his racial justice initiatives in the ICERD to raise the profile of the treaty the United States signed nearly 60 years ago and to boost the domestic efficacy of the measures he adopts. With over half its term complete, President Biden's administration is running short on time to make good on his commitment to combat racism and racial discrimination. While the new, divided U.S. Congress all but eliminates the possibility of meaningful legislative action, President Biden's executive authority offers a deep well of authority that remains largely untapped. The steps outlined above would constitute a promising start in deploying that authority effectively by subsuming executive racial justice initiatives under a more powerful legal framework, augmenting federal nondiscrimination standards, and driving greater dialogue about whether and when the U.S. complies with its international legal obligations.

G. Ian M. Kysel is Assistant Clinical Professor of Law, Cornell Law School and Non-Resident Fellow, Zolberg Institute on Migration and Mobility, New School for Social Research.

Alex Sinha is Associate Professor, Maurice A. Deane School of Law at Hofstra University.