C. General Legal Framework

The U.S. Constitution is the central instrument of government and the supreme law of the land. Adopted in 1789, it is the world's oldest national, written constitution still in force. Together with its twenty-seven amendments (the first ten are known as the "Bill of Rights"), the Constitution guarantees the essential rights and freedoms of all individuals within the jurisdiction of the United States. State constitutions and laws may, and sometimes do, provide stronger protections than federal law (for example, in the area of freedom of religion and expression), but none may fall below the basic guarantees of the federal Constitution.

Under Article VI of the U.S. Constitution, duly ratified treaties become part of the "supreme law of the land" with a legal status equivalent to enacted federal statutes. As such, they prevail over previously enacted federal law (to the extent of any conflict) and over any inconsistent state or local law. Since existing U.S. law - through constitutional and statutory protections against, and remedies for, racial discrimination - complies with obligations assumed by the United States under the Convention, it was deemed unnecessary, at the time of ratification, to propose implementing legislation.

The essential guarantees of human rights and fundamental freedoms within the United States are set forth in the U.S. Constitution and statutes of the United States, as well as the constitutions and statutes of the U.S. states and other constituent units. In practice, the enforcement of these guarantees ultimately depends on the existence of an independent judiciary with the power to invalidate acts of the other branches of government that conflict with those guarantees. Maintenance of a republican form of government with vigorous democratic traditions, popularly elected executives and legislatures, and the deeply-rooted legal protections of freedoms of opinion, expression, religion and the press, all contribute to the protection of human rights against governmental limitation and encroachment.

There is no single statute, institution or mechanism in the United States by which internationally recognized human rights and fundamental freedoms are guaranteed or enforced. Rather, domestic law provides extensive protections through various Constitutional provisions and statutes which typically create administrative and judicial remedies at both the federal and state levels. Responsibility for identifying violations and enforcing compliance is therefore shared among the various branches at all levels of government. In practice, a major impetus for the protection of statutory and Constitutional rights derives from individual remedial actions, advocacy by nongovernmental organizations, legislative and federal agency monitoring and oversight, and the ameliorative efforts of a free and energetic press.

Several parts of the federal government bear special responsibilities for matters directly relevant to this Convention:

U.S. Department of Justice. The Civil Rights Division of the Department of Justice serves as the chief civil rights enforcement agency for the federal government, charged with the effective enforcement of federal civil rights laws, in particular the Civil Rights Acts of 1964 and 1991, and the Voting Rights Act of 1965. The Civil Rights Division also exercises the authority given to the

Attorney General under Executive Order No. 12250 to ensure consistent and effective enforcement of laws prohibiting, among other things, discrimination on the basis of race, color, national origin, religion, or sex in programs and activities receiving federal financial assistance, as well as on the basis of disability in programs receiving federal financial assistance and conducted by federal agencies. The Division also enforces laws prohibiting patterns or practices of police misconduct (42 U.S.C. sec. 14141), protecting the constitutional and federal statutory rights of persons confined to certain institutions owned or operated by state or local governments, such as prisons, jails, nursing homes, and mental health facilities (the Civil Rights of Institutionalized Persons Act (CRIPA)), and the Equal Credit Opportunity Act and the Fair Housing Act (the Department of Justice shares responsibility for administration of the latter statute with the Department of Housing and Urban Development). Under these various statutes, the Division may bring civil actions to enjoin acts or patterns of conduct that violate constitutional rights. In its civil cases, the Justice Department's responsibilities permit it to go to federal court to seek broad remedial orders that may include compensatory damages, civil penalties, injunctive relief and, in some cases, punitive damages.

The Division also has authority to prosecute criminally those who use force or threat of force to violate a person's rights to non-discrimination (so called "hate crimes") and state and local law enforcement officers who engage in the use of excessive force (18 U.S.C sec. 242).

The Community Relations Service (CRS), an independent agency within the Justice Department, is the federal government's "peacemaker" for community conflicts and tensions arising from differences of race, color, and national origin. Created by the Civil Rights Act of 1964, CRS is the only federal agency whose purpose is to assist state and local units of government, private and public organizations, and community groups with preventing and resolving racial and ethnic tensions, conflicts and civil disorders, and in restoring racial stability and harmony.

Within the Department of Justice, the Office of Special Counsel for Immigration Related Unfair Employment Practices enforces prohibitions against citizenship status discrimination in employment, national origin discrimination by small employers, and document abuse associated with employer sanctions.

U.S. Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission (EEOC), an independent, bi-partisan agency within the executive branch established by the Civil Rights Act of 1964, has enforcement and compliance responsibilities concerning the elimination of discrimination based on race, color, national origin, religion, gender, age and disability by private and public employers in all aspects of the employment relationship.

Since its inception, the EEOC has obtained over $2.2 billion in monetary benefits for parties bringing discrimination charges through administrative actions, i.e., through conciliation and settlement. In 1999 alone, the EEOC obtained over $210 million in these actions.

U.S. Commission on Civil Rights. While not an enforcement agency, the U.S. Commission on Civil Rights also plays an important role in safeguarding the rights recognized by the Convention. The Commission has a broad mandate to monitor and report on the status of civil rights protections in the United States. As an independent, bipartisan agency, it collects information on discrimination

or denials of equal protection of the laws because of race, color, and national origin, evaluates federal laws, and makes recommendations to the President and the Congress based on the effectiveness of governmental equal opportunity and civil rights programs.

Other federal departments and agencies also have important enforcement responsibilities. For example:

-- Within the Department of Education, the Office for Civil Rights is charged with administering and enforcing civil rights laws related to education, including desegregation of the country's elementary and secondary schools. This office gives particular attention to discrimination against minorities in special education and remedial courses, in math and science and advanced placement courses, in the use of tests and assessments, and in higher education admissions.

-- The Assistant Secretary for Fair Housing and Equal Opportunity within the Department of Housing and Urban Development administers the laws prohibiting discrimination in public and private housing and ensures equal opportunity in all community development programs. HUD's Office of Fair Housing and Equal Opportunity administers two grant programs: the Fair Housing Assistance program (which provides financial assistance to supplement enforcement activities at the state and local levels) and the Fair Housing Initiatives Program (a competitive grant program to provide funding to private fair housing groups).

-- The Office of Civil Rights within the Department of Health and Human Services administers civil rights laws prohibiting discrimination in federally-assisted health and human services programs, with particular emphasis on areas of managed care, quality of health care, inter- ethnic adoption, services to limited English proficient persons, and welfare reform.

-- Within the Department of Labor, the Office of Federal Contract Compliance Programs administers laws prohibiting discrimination and requiring affirmative action in employment by Federal contractors and subcontractors on the bases of race, gender, national origin and other grounds. The Department's Civil Rights Center enforces laws prohibiting discrimination by recipients of federal financial assistance from the Department of Labor on the bases of race, religion, national origin, gender, disability and other grounds.

-- Within the Department of Agriculture, civil rights programs are aimed at ensuring that all USDA customers are treated fairly and equitably. In 1997, USDA appointed a Civil Rights Action Team to address allegations of discrimination against minority farmers in the United States. As a result of its investigations, the Team concluded that minority farmers had indeed lost significant amounts of land and potential farm income as a result of discriminatory practices by the USDA. That same year, a major class action lawsuit was filed against the United States and the USDA alleging widespread discrimination against Black farmers in the United States. As a result of the lawsuit, a consent decree has been entered, establishing a claims mechanism through which individual class members can resolve their complaints in an expeditious and fair manner. To date, 11,120 Black farmers have received over $323 million in compensation.

-- The Office for Equal Opportunity within the Department of the Interior administers laws

prohibiting discrimination based on race, color, and national origin in federally assisted and federal employment programs. These programs ensure that state and local park, recreation, fishing, hunting, and historic preservation programs and activities are provided to individuals in the United States on an equal opportunity basis regardless of race, color, or national origin. In addition, this office enforces compliance with civil rights laws with respect to employment in state natural resource programs and administers civil rights laws prohibiting unlawful discrimination against employees of, and applicants for employment with, the Department of Interior.

-- Within the Department of Defense, the Deputy Assistant Secretary for Equal Opportunity is responsible for implementing and monitoring the Department's civilian and military equal opportunity/affirmative action plan goals and objectives.

In addition to the agencies listed, virtually all federal agencies that provide federal financial assistance have civil rights offices whose responsibility it is to ensure that recipients of that assistance do not engage in unlawful discrimination. This includes the major providers of federal assistance such as the Departments of Agriculture, Commerce, Education, Health and Human Services, Housing and Urban Development, Justice, Labor, Transportation, and Veterans' Affairs. All twenty-eight federal providers of federal assistance are responsible for ensuring that their recipients do not discriminate, and the Civil Rights Division of the Justice Department is responsible for ensuring that all Federal funding agencies effectively and consistently enforce their nondiscrimination responsibilities.

Furthermore, a number of federal agencies, including the Environmental Protection Agency, the Federal Emergency Management Agency, the Federal Communications Commission and the Departments of Agriculture, Energy, Commerce, Defense, Health and Human Services, Housing and Urban Development, Justice and Labor have established offices or points of contact to specifically address issues affecting Native Americans, their lands and resources. Also, many of these agencies have developed agency-wide policies, based on the concepts of self-governance, the federal trust responsibility, consultation and the government-to-government relationship to guide their work with Indian tribes.

In the U.S. Congress, special emphasis has long been given to matters involving discrimination on the basis of race, color, national origin, and ethnicity. In addition to the oversight functions of various standing committees in both Houses (such as Judiciary, Indian Affairs, and Commerce, Justice, State, the Judiciary and Related Agencies), attention is focused through other mechanisms such as the Asian Pacific, Black, Hispanic, Native American and Human Rights Caucuses.