Enforcing and Implementing U.N. Treaties at the State and Local Levels.

Getting A City To Live by U.N. Human Rights Treaties

by Ann Fagan Ginger[1]

The specific rights and duties spelled out in the Convention on Elimination of all forms of Racial Discrimination (CERD) are only going to be enforced if the government agents responsible for this work know that the Convention is part of the law they must enforce.

Many state and local government officials in the U.S. are totally ignorant of the fact that a treaty is part of the supreme law of the land under the U.S. Constitution and that therefore the local officials must learn what is in the treaties and must convey this information to their employees and contractors, and must then carry out their duties under the treaties.

The first human rights treaty language adopted by the U.S. is in Articles 55 and 56 of the United Nations Charter.

In order to make this usable by local people living in cities, Meiklejohn Institute leaders[2] proposed that the Berkeley City Council adapt Articles 55 and 56 and adopt them as part of the city's laws. The City Council took this action on Aug. 16, 1990.

Berkeley Human Rights Ordinance 5985-N.S.

BE IT ORDAINED by the Council of the City of Berkeley as follows:

Sec. 1. With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among the people of the city and region, based on respect for the principle of equal rights of people, the City of Berkeley shall promote:

a. Higher standards of living, full employment, and conditions of economic and social progress and development;

b. Solutions of local, economic, social, health and related problems; and regional cultural and educational cooperation, and

c.Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.[3]

Sec. 2. The City of Berkeley pledges to take joint and separate action in cooperation with Alameda County, Association of Bay Area Governments, the State of California and the United States Government for the achievement of the purposes set forth in Section 1, and in cooperation with the United Nations where appropriate.

When the U.S. became engaged in the Gulf War in 1990-91, MCLI leaders proposed that the Berkeley City Council carry out its duties under the U.N. Charter and other laws to protect the rights of Arab Americans, Iraqis, and anyone subject to harassment at that time. The City Council took that action in a resolution passed in January and the following one passed on February 19, 1991, as Resolution 55,765 N.S.

Emergency Resolution on Protecting the Civil Rights of the Arab-American Community

Whereas, the Berkeley City Council, in a resolution on January 8th, 1991, stated it supports peace, opposes and condemns aggression, and stresses the need to resolve the Persian Gulf crisis through diplomacy and negotiations; and

Whereas, the United States government's air assault on Iraq begun on January 16, 1991, has created a war hysteria in the United States which has led to a rise in violence towards Arab-Americans in particular, and Americans of Middle Eastern descent, and American Muslims in general, in Berkeley; and

Whereas, The federal government has implemented throughout the nation, including the City of Berkeley, a policy of interrogation and harassment of members of the Arab community, and Congressman Don Edwards (D.-Calif.), Chair of the House Judiciary Committee, Constitutional and Civil Rights Subcommittee, announced that he is urging FBI Director William Sessions to reconsider the interviews the FBI has sought with 200 Arab-American leaders; and

Whereas, The U.S. Justice Department is planning to register, fingerprint and photograph 8,000 Iraqis in the United States, and the Immigration and Naturalization Service Contingency Plan of 1986 allows for the internment of people of "Middle Eastern" descent, and we recall the hysteria of World War II with the detention of Japanese-Americans, who only received reparations in 1990; and

Whereas, The City of Berkeley has a diverse ethnic population and historically has welcomed immigrants, especially those fleeing hardship and persecution; and

Whereas, the Berkeley City Council has already declared and reaffirmed Berkeley as a City of Refuge (1971 Resolution No, 44,784-N.S. and 1986, relating to Central American refugees, Resolution No.52-596-N.S.); and

Whereas, It is the duty of the agencies of the City of Berkeley to protect and serve the inhabitants of this city and their civil rights, now therefore be it

Resolved, That the City of Berkeley hereby commends congregations, religious orders, and civil rights organizations who protect Arab-American communities from civil rights violations; and be it

Further resolved, That the city Council and its chief administrative officers within the city, advise various boards and commissions and departments under their respective jurisdiction that the City departments shall not violate any civil rights of any persons of Arab, Iraqi, Palestinian and other Middle Eastern descent, and shall not jeopardize the safety and welfare of Arabs residing in this city, by acting in a way that may cause their arrest, detention, or deportation; and be it

Further resolved, That the city of Berkeley will continue to support and protect the human rights of Arab residents, and that the implementation of the provisions of this Resolution by employees and agencies of the City remain consistent with the City Charter, the County Charter, the United States and California Constitutions, and the United Nations Charter and the Nuremberg Principles; and be it

Further resolved, That the Clerk of the City Council is hereby directed to forward copies of this Resolution to Senators Cranston and Seymour, the California Congressional Delegation, the Commissioner of the Immigration and Naturalization Service, the Director of the Federal Bureau of Investigation, the State Department and the President of the United States; and be it

Further resolved that the implementation of the provisions of the resolution by employees and agencies of the City of Berkeley remain consistent with the laws of the United States, the State of California, the City of Berkeley and the United Nations, and the City of Berkeley is not, on adopting this resolution encouraging its employees and citizens to violate any local, state, federal or international laws.

Implementing the Convention on Elimination of Racial Discrimination

When the U.S. ratified the CERD, the State Department explicitly agreed that it had four duties: 1) to publicize the text in the federal government and to state and local governments; 2) to make the periodic reports to the CERD required in the treaty; 3) to participate in dialogue with the CERD as scheduled; and 4) to monitor enforcement of the treaty provisions.

In fact, Meiklejohn Civil Liberties Institute has worked consistently since 1993 to ensure that the U.S. Government carry out these responsibilities as to the International Covenant on Civil & Political Rights and later as to CERD and the Convention Against Torture.

MCLI in person and by phone, urged the State Department to publish the complete text of the ICCPR in the Federal Register so that it would be easily accessible to all government workers and would be perceived as being part of the U.S. law they are sworn to uphold.

Reporting by City Commissions

In 1994, the Berkeley Commission on peace & Justice convinced the Berkeley City Council to request the Labor Commission, the Women's Commission, and Youth Commission to read the International Covenant on Civil & Political Rights and to make reports to the U.S. State Department that it could use in its report to the U.N. Human Rights Committee. This procedure led many citizens of Berkeley serving on these commissions to learn, for the first time, about the treaty and its reporting requirements. These Commissions did make reports to the U.S. State Department, which were not acknowledged or used. Portions of these reports were then included in the Issue Sheets submitted by Meiklejohn Civil Liberties Institute to the State Department and later to the U.N. Human Rights Committee directly.

California State Bar Resolution on State Reporting to U.N. Committees

After participating in many workshops on international law in which none of the professors or government agents showed any clear understanding about the reporting requirements in the treaties, MCLI decided to propose a resolution to the lawyers organization in one state so that, out of the debate, at least 1,000 lawyers most active in public affairs would learn about these treaties and their requirements.This strategy was successful.

Every lawyer in the State of California, USA, is required to be a member of the California State Bar Association. The National Lawyers Guild and other accredited bar associations are members of the Conference of Delegates, a part of the State Bar. Its resolutions led the Bar to sponsor new laws in the state legislature.[4]

In 1996, the National Lawyers Guild proposed a resolution that was debated and adopted by the Conference of Delegates at its convention. Similar statutes could be proposed in every state in the U.S.

PROPOSED AS AMENDMENT TO STATE CIVIL RIGHTS ACT:

(a) It is the intention of the Legislature in enacting this section to make available state and local data on the civil rights and liberties contained in the recent United States laws, the International Covenant on Civil and Political Rights ("Covenant"), April 1, 1992, 138 Congressional Record S4781-1784 (1992), June 8, 1992, 58 Federal Register 45934-45942 (Aug. 31, 1993); International Convention on the elimination of all forms of Racial Discrimination ("Discrimination Convention"), 40 Congressional Record S7634 (1994) June 24, 1994, and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("Inhuman Treatment Convention:), 13 Congressional Record S17491-2 (1990), Oct. 2, 1990.

(b) The State of California, through the governor and Attorney General, shall make data available on civil rights and liberties, in the State of California and in each of its cities and counties, pursuant to Articles 1-27 of the Covenant, and pursuant to Articles 1-7 of the Discrimination Convention and pursuant to Articles 1-16 of the Inhuman Treatment Convention, which data the United States State Department has requested be submitted to it for inclusion in the United States reports required to be submitted by the United States to the United Nations Human Rights committee under Art. 40 of the Covenant, to the Committee on the Elimination of Racial Discrimination under Art. 9 of the Discrimination Convention and to the Committee Against torture under Art. 19 of the Inhuman Treatment Convention.

Keep on Keeping On

Meiklejohn has also sought to involve the Berkeley Board of Education in making reports to the U.N. human rights committees. The problem with city reporting is budgetary. So far, no city officials have proposed a budget item for this work, although they do not oppose the work being done by NGOs. These experiences have nonetheless had an impact on members of the City Council, their staffs, and members of city Commissions. They are all aware of the adoption of the treaties, and feel much closer to the United Nations system than formerly.

News Flash: The Ninth Circuit Court of Appeals relied on the Convention Against Torture in deciding an extradition case in 2000: Cornejo-Barreto v. Seifert, 218 F.3d 1004 at 1017, in a thoughtful opinion by Fletcher, C.J. that can be used in all cases involving rights enunciated in any of the three human rights treaties ratified by the U.S.

And at a recent college Model U.N. contest in San Francisco, many students responded enthusiastically when the spokeswoman from Meiklejohn Institute described the treaties, and the treaty reporting system, of which they had been unaware.

So WCAR delegates from the U.S. can use the spirit and decisions of the Conference in legislative work, including renewal of the 1965 U.S. Civil Rights (Voting) Act in 2005.

Copyright 1999-2004. Meiklejohn Civil Liberties Institute. All rights reserved.