United Nations Special Rapporteur on minority issues, Dr Fernand de Varennes
Washington, DC, 22 November 2021
Ladies and gentlemen, good morning.
From 8 to 22 November 2021, at the invitation of the Government of the United States of America, I conducted a mission to evaluate the human rights situation of minorities in the country. I met with more than a hundred officials at federal, state and territorial levels, minority caucuses also at the federal, state and territorial levels, civil society organizations, minority representatives and experts from different parts of the country, both online and in person in the District of Colombia, Guam, California, Texas and Puerto Rico. The mission also included onsite visits to northern Guam and the island of Vieques. I have met with high-level representatives of a number of departments and other governmental entities including the State Department, the Department of Interior, the Department of Health and Human Services, the Department of Justice, the Department of Education, the Department of Homeland Security, the Federal Bureau of Investigation and the Domestic Policy Council.
I want to express my gratitude to everyone I met with for their readiness to engage in an open dialogue to better understand and assess the human rights situation of minorities in the United States. I would like to sincerely thank the United States Government for the invitation to undertake this mission and for the support and valuable cooperation of the State Department.1
This statement contains my preliminary observations. I will submit my final report to the March 2022 session of the United Nations Human Rights Council.
1. Introduction
The objectives of my visit were to identify, in a spirit of cooperation and constructive dialogue, good practices, but also to address existing gaps and deficiencies in the promotion and protection of the human rights of persons belonging to national or ethnic, religious and linguistic minorities in the United States of America, in conformity with my mandate as UN Special Rapporteur on minority issues. This mission’s overall purpose was to identify ways of improving the effective implementation of international obligations in relation to the human rights of minorities.
More to the point, the overall aim of the visit was to take a closer look at existing legislation, policies and practices for the protection and promotion of the rights of minorities. I wanted to explore aspects of particular significance such as the right to effective political participation and voting rights of minorities, education and the linguistic rights of minorities, access to justice and administration of criminal justice, and measures to address hate speech and hate crimes.
As I have often explained in previous country visits and in other activities of the mandate, minorities must be understood broadly as objective, numerical categories as to whether a linguistic, religious or ethnic group comprise less than half the population in the country. It has no negative connotation, does not depend on official recognition, is not affected by regional or other forms of autonomy arrangements, and does not involve any issue of domination, subservience or socio-economic status.
Today, I will only present my preliminary observations on some of the main issues. These will be elaborated in much more detail in the final report once I review the materials and documents that I have collected during the visit, as well as submissions made before, during and after the mission. I will present my final report to the UN Human Rights Council in Geneva in March 2022.
2. Human rights context
The United States is a nation of paradoxes when it comes to human rights and minorities.
The land which welcomes the world’s tired, poor, and huddled masses is also the land where support for slavery led to one of the world’s most brutal civil wars, where racial segregation persisted late into the 20th century, and where indigenous peoples’ experiences have for centuries been one of dispossession, brutality and even in some cases genocide.
The relationship with the international system of protection of human rights is also contradictory. Eleanor Roosevelt, as the chair of the United Nations Human Rights Commission, was the driving force for the 1948 Universal Declaration of Human Rights and symbolizes the USA’s historical legacy in setting up the foundational stone for the international human rights architecture.
And yet the United States has never fully embraced humanity’s global moral code of conduct. As others in the UN system have pointed out, it “has not signed and ratified any of the human rights treaties that would allow United States citizens to present individual complaints to the United Nations human rights treaty bodies or to the Inter-American Court of Human Rights”, and considers “the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as non-self-executing”, with the result that interhuman rights treaties are generally not recognized as giving rise to individually enforceable rights in United States courts.”2 It has also “determinedly rejected the idea that economic and social rights are full-fledged human rights”.3
The legal landscape for the protection of human rights inside the United States is also far from comprehensive or even at times coherent. While the Fourteenth Amendment to the Constitution adopted in 1868, grants full United States citizenship to all persons born or naturalized in the United States, and the Fifteenth Amendment to the Constitution, in 1870, prohibiting denial of the right to vote on the basis of race, there are exceptions for territories which are not states, and this means millions of US citizens – mainly minorities and indigenous peoples – do not fully enjoy the same rights as other Americans. Even more problematic from a human rights point of view is that not all Americans are citizens: inhabitants of what is considered ‘unincorporated and unorganized territory’, American Samoans, are ‘nationals’ but not ‘citizens’ of the US, with even less civil rights protection than other minorities.
Neither is there a national human rights legislation or mechanism to ensure that the country’s population can enjoy the full range protection of the human rights generally recognized in international law. The Constitution’s first ten amendments, or the Bill of Rights, provides important human rights protections, including the freedom of speech, religion, peaceful assembly, liberty and security, and fair trial. At best it is a very incomplete amalgam. Only certain freedoms and procedural rights are guaranteed, though some state constitutions go much further in terms of human rights protection. There were also significant and hard-won gains made mainly during the civil rights movement in the 1960s such as the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.
Nevertheless, the USA stands out among Western democracies for its incomplete patchwork of human rights recognition and their legal protection. One of the results of these structural gaps and omissions in the legal landscape of the country are that those segments of society most in need of the protection provided by international human rights standards, particularly marginalized groups such as some minorities and indigenous peoples, are the most likely left behind in times of upheaval, uncertainty and crisis, such as has emerged during the pandemic, political upheavals flowing from the contested 2020 federal elections, and growing economic and social tensions. The most marginalised individuals and communities are often the most vulnerable if there is not comprehensive legal protection of their human rights. Minorities are also more likely to be used as convenient scapegoats for conspirationists and xenophobes, and instrumentalized for short-term political gain opportunists by populists. Unfortunately, recent years have seen these structural deficiencies in human rights and the phenomenal growth of hate speech in social media, growing inequalities between have and have nots, often minorities and indigenous peoples, creating toxic conditions and an unhealthy pandemic of the mind, a poisoning of individual minds and society in many parts of the country.
My final report will provide more details and analysis in this regard, but what is already eminently clear is that there seems to be a growing feeling that the United States is becoming a darker, nastier and more divided society – and that the patchwork of constitutional and civil rights in the country are not sufficiently protecting those most in need of protection such as minorities and indigenous peoples, amongst others. It is very far from, to borrow from the country’s Constitution, ‘a perfect union’.
At the same time, I was nevertheless impressed by the significant changes which are taking shape in 2021 following the 2020 federal elections, and for which the US Government must be commended. The Biden administration has expressed a commitment to respect for international human rights law, and there is a recognition that their credibility in terms of human rights internationally is directly related to upholding human rights at home. The United States was recently elected as a member of the Human Rights Council for the period 2022-2024, and has issued a standing invitation to UN Special Procedures mandate holders.
The current administration has thus undertaken a multitude of positive steps to improve the situation and rights of minorities in the country. These are too numerous to comprehensively list, though a very few include an Executive order on advancing equity, justice, and opportunity for Asian Americans, Native Hawaiians and Pacific Islanders, efforts to strengthen regular, meaningful and robust consultation with tribal nations, the adoption of Executive Order 13995 on ensuring an equitable pandemic response and recovery, and the adoption of the Covid-19 Hate Crimes Act. Some states such as California have adopted more robust human rights legislation in recent years, and innovative policies and programmes to address more actively hate speech and hate crimes targeting minorities, specific measures to address language and other barriers in education and accessing public services, and so on. More examples of good practices will be contained in the final report. While these and other legislation and initiatives provide important additional protection for the country’s most vulnerable, the United States’ lack of a comprehensive national human rights legislation hampers any degree of certainty that the nation’s states and territories will also proceed in the same direction, or that any gains made for the protection of the human rights of minorities federally will not later on be watered own or completely set aside.
UN human rights mechanisms and independent experts have identified a number of issues in the United States over the years that still remain of concern today, such as the overrepresentation of ethnic minorities in the criminal justice system, the practice of racial profiling and surveillance by law enforcement officials targeting certain ethnic and religious minorities, excessive use of force by law enforcement officials against members of certain minorities such as African-Americans and Hispanics, obstacles faced by individuals belonging to minorities to effectively exercise their right to vote, disparities in access to education, health, housing and employment.
Both United Nations human rights mechanisms and civil society organizations in the United States have expressed concern about the absence of a National Human Rights Institution in line with the Paris Principles on the status of national institutions for the promotion and protection of human rights. The need for an interagency federal body responsible for implementation and follow up to United Nations human rights mechanisms’ recommendations has also been pointed out to me.
Existing civil rights legislation, initially crafted more than 50 years ago during the 1960s civil rights movement, are often more restrictive than international human rights counterparts, particularly in relation to the prohibition of discrimination: legislation in the USA tends to recognize a narrower range of personal characteristics to assess whether differences of treatment can be justified, and in some areas of application there must be evidence of a form of ‘intent to discriminate’ that can be difficult to demonstrate in order to make out what constitutes discrimination from a legal point of view. Both approaches can in other words be too narrow compared to international obligations – and therefore lead to situations where legislation, policies or practices are deemed not discriminatory in US law which breach global human rights standards which the USA accepted when it ratified ‘more modern’ treaties such as Article 26 of the International Covenant on Civil and Political Rights.
There is an urgent need not only to adopt comprehensive national legislation, but to revamp current piecemeal and narrow civil rights laws which more closely conform to the universal human rights obligations of the United States. The 1960s civil rights laws were an important and essential development well suited a particular social and political context, but many expressed to me the view that they do not seem to be well equipped more than half a century later to handle the more complex and rapidly changing challenges of the digital 21st Century with ever increasing inequalities between the have and have nots, rapid movements of people and goods across borders, and the spontaneous megaphones of xenophobia, racism, hate and incitement to violence reaching millions within minutes through social and other media.
Millions of Americans, particularly minorities, are facing growing inequality, discrimination and even exclusion, facing dramatic increases in hate speech and hate crimes, as well as the challenges and threats caused by environmental degradation and growing economic, health and educational disparities leaving a disproportionate proportion of them behind. Building a better America requires a new deal for the 21st century for all Americans, but is most needed for the most marginalized and vulnerable minorities, such as indigenous peoples, Afro-Americans, Hispanics, and others.
The United States therefore needs comprehensive human rights infrastructure vision and legislation that includes the creation of a national human rights entity for the promotion and protection of human rights consistent with the Paris Principles relating to the status of human rights institutions.
There is a particular historical and social context that warrants a specific focus on African-Americans, particularly in the wake of George Floyd, Breonna Taylor, Ahmaud Arbery, and so many others. They are amongst the most marginalised minorities in the country in terms of socio-economic position, are by far the most likely to be denied the vote in federal in state elections, to be incarcerated, to be the targets of hate speech in social media, to be disproportionally discriminated or even excluded in a number of areas. While my final report will deal with the many human rights issues they face, other UN procedures need to and will focus more on their particular predicament. This includes my colleague, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the Working Group of Experts on People of African Descent. The United States needs to be commended for inviting the former to conduct a mission to the country in 2023. I also urge the USA to invite the Working Group of Experts on People of African Descent for a follow-up meeting to its 19 to 29 January 2016 mission. They will also be in a much better position to consider whether the federal government should compensate the descendants of former slaves to redress for the country’s legacy of slavery, a legacy of persistent and disproportionate inequality and marginalization, that still affects large portions of the African American minority, whether this should take the form of reparations, and what form these reparations should take.
3. The right to effective political participation of minorities, particularly the right to vote and political representation
One of the core international human rights, and a foundation stone of democracy in the United States, is the right, as expressed in Article 25, of “every citizen… to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.
It became clear during this mission that this is increasingly and actively being undermined – and impacting mainly minorities such as African-Americans, Hispanics, and indigenous peoples. This is not a new phenomenon historically and was already recognised by other UN independent experts, such as in 2017: “In the US there is overt disenfranchisement of vast numbers of felons, a rule which predominantly affects Black citizens since they are the ones whose conduct is often specifically targeted for criminalization. In addition, there are often requirement that persons who have paid their debt to society still cannot regain their right to vote until they paid off all outstanding fines and fees. Then there is covert disenfranchisement, which includes the dramatic gerrymandering of electoral districts to privilege particular groups of voters, the imposition of artificial and unnecessary voter ID requirements, the blatant manipulation of polling station locations, the relocating of DMVs to make it more difficult for certain groups to obtain IDs, and the general ramping up of obstacles to voting especially by those without resources. The net result is that people living in poverty, minorities, and other disfavored groups are being systematically deprived of their voting rights.”4
Four years later, the pace of what my colleague described as the undermining of democracy has expanded explosively. More than 425 state bills with provisions that restrict voting access have been introduced in 49 states in the 2021 legislative sessions. Most notable in this direction is S.B. 1, a Texan omnibus legislation that disproportionately impacts on African-American, Hispanic, and Asian minorities. It makes it harder for those who face language access barriers, mainly minorities, to get help to cast their ballots, but also restricts the ability of election workers to stop harassment disproportionally targeting minorities by partisan poll watchers and bans 24-hour and drive-thru voting. These were measures which tended to be most useful in facilitating poorer or more challenged voters with precarious employment, little or limited access to transportation, and those without support structures at home to more easily cast their democratic right to vote. These disproportionally, even overwhelmingly, involve minorities.
The electoral system in Texas, and unfortunately in a number of other states, thus appears increasingly loaded against minorities. Despite minorities representing about 95% of the population growth in the state in the 2020 census of which more than half was Hispanic, the two congressional seats added because of this population growth have a majority white population makeup according to court documents filed in a lawsuit a few weeks before my mission. Such examples of what is known in the United States as ‘gerrymandering’5 are in the upswing in the country and increasingly targeting the dilution of the voting power of minorities. This is only possible in states which do not have an independent redistricting commission. In States such as California, with an independent redistricting commission, no such undermining of the right to vote of minorities appear to be occurring.
On the positive side, two federal draft voting bills are currently before Congress, the Freedom to Vote and the John R. Lewis Voting Rights Advancement Act, which aim to set national voting standards and strengthen legal protections against discriminatory voting laws and policies. It is however far from certain these will succeed in being adopted.
Citizens in United States territories (including Guam and Puerto Rico, which I visited) cannot vote in presidential elections. American Samoans cannot vote in any event because they are not considered US citizens – even if they are American ‘nationals’. They are not represented in the U.S. Senate, and their representatives in the House of Representatives cannot vote on the floor. Some minorities are currently not considered citizens, but ‘nationals’ with even less rights in terms of political representation and participation. There is no doubt that a number of these restrictions are questionable from the point of view of the prohibition of discrimination in international law and will be considered more comprehensively in the final report.
4. Education and the linguistic rights of minorities
Minority students are often concentrated in high-poverty public schools, which seem to systematically provide lower educational opportunities. Public school district budgets are tied in many states to local property taxes, meaning that public schools in wealthier communities automatically have more local funding. Federal funding reportedly does not make up for this discrepancy. There is also in some parts of the United States significant financial support, tax and other forms of concessions and transfers for private education. More than one minority organization pointed out this could be seen as form of structural discrimination, akin to a diversion of public resources away from public education, and a form of ‘robbing Peter to pay Paul’, and underfunding of the public school system, underpaying of public teachers, and disproportionate impacting on mainly minority students.
While some states such as California have put in place forms of bilingual education, particularly for its large Hispanic minority as well as some of the larger more concentrated minority and minority communities, and the results for these have been overwhelmingly positive, this is not the case generally for many linguistic minorities in other parts of the country. The Cajun minority for example has constituted a large proportion of the population in the state of Louisiana and parts of neighbouring states and played a prominent role in its history and society, have seen their language (French) come under threat because of policies aimed at the forced assimilation of members in part to active prohibitions of its use in schools until the late 20th century. As with indigenous languages, the French language is part of the rich cultural and linguistic heritage of the country, and needs further measures for its preservation, revitalization and promotion, including in innovative programs in education and elsewhere to ‘renormalise’ and strengthen its use and position in Louisiana.
The Chamorro language in Guam and neighboring islands is on the UNESCO list of endangered languages, following an English-only policy introduced by the United States which lasted until relatively recently, with individuals I met sharing their stories of how they were physically punished for speaking Chamorro in school. While attitudes towards the language have changed dramatically in recent years, Chamorro is not widely taught in schools, and it’s use as a medium of instruction is still very limited. This has a detrimental effect on the academic performance of Chamorro children and how they perceive their identity and culture, as well as their feelings of self-worth. As in the case of indigenous languages and French in Louisiana, the indigenous Chamorro language’s precarious state, a legacy of previous discriminatory practices by officials and repressive legislation and policies, needs to be redressed and normalized in Guam.
Individuals who are deaf or hard of hearing, as well as members of their families and others who use sign languages to communicate, are using a full-fledged language. Since they form less than half of the population of the country, they are therefore members of a linguistic minority falling within my mandate. Concerns related to sign language include the lack of recognition of American Sign Language (ASL) and language deprivation, as many deaf children are not able to learn sign language at a young age. The use of sign-language in education and the status of ASL in the country varies hugely and is not always coherent. In many states ASL is only recognized as a ‘foreign language’ so that it may for example may be accepted as foreign language for the purposes of college or university credit. Teaching in sign language is not always favoured, and in some parts of the country not actively used, as medium of instruction, contrary to what is generally considered to be in the best approach in educating deaf and hard of hearing children. Ratifying and implementing the United Nations Convention on the Rights of Persons with Disabilities could help protect the linguistic rights of deaf people in the United States, particularly in the field of education and in accessing public services and information. In addition, American Sign Language (ASL) must be more widely recognised as a language in education legislation to facilitate its use of ASL as a language of instruction.
5. Access to Justice and administration of Criminal Justice
I am very concerned at sentencing disparities and incarceration rates for minorities in the criminal justice system. The use of mandatory minimum sentences and zero tolerance policies in some state laws, as well as the ‘war on drugs’, have had the effect of ‘criminalising large swaths of minority populations out of all proportions. As others have reported, one third of the prison population is African American and one third is Hispanic/Latino, while they only make up some 13 % and 18 % of the population in the US. This has created a vicious circle of exclusion and barriers to later employment and inclusion in society for those with criminal records, such as accessing adequate housing, social programs and credit. Ultimately of millions – overwhelmingly minorities – being effectively excluded from political representation and the right to vote in some areas because of felony or even misdemeanor convictions and associated penalties.
I have come to the view that minorities such as African Americans and Latinx in particular find themselves disproportionally at the receiving end of marginalization and criminalization that crushes them into a generational cycle of poverty, with a legal system that is structurally set up to advantage and forgive those who are wealthier, and penalizing those who are poorer, particularly minorities of colour. As pointed out by my colleague on extreme poverty after his mission to the USA in 2017, “the criminal justice system is effectively a system for keeping the poor in poverty while generating revenue to fund not only the justice system but diverse other programs. The use of the legal system, not to promote justice, but to raise revenue, as documented so powerfully in the Department of Justice’s report on Ferguson, is pervasive around the country. So-called ‘fines and fees’ are piled up so that low level infractions become immensely burdensome, a process that affects only the poorest members of society who pay the vast majority of such penalties”. What he could have also added is that these poorest members of society caught up in this vicious cycle of the poverty become income-generators for the criminal justice system – and further exacerbating their own poverty – are mainly from minority communities such as African Americans and Latinx.
Police killings of and violence and brutality towards African Americans are now of extremely grave concern because of more recent high profile incidents. But what is overlooked is the systemic nature of what the mediatized incidents reveal. Available statistics indicate that African American men are almost three times as likely, and Hispanic/Latino men are almost twice as likely, to be killed by police than white men. Independent and effective oversight of law enforcement is crucial to end such practices, in addition to other practices that need to be more systematically put into place towards de-escalating confrontational approaches towards African American, Hispanic and other minorities, ending racial profiling practices which it is reported is still prevalent, and other good practices which will be outlined in the final report.
6. Hate Crimes and Hate Speech
There are hate crime laws at the federal level and in most States, prohibiting violence motivated by race, color, religion and national origin. However, there is no uniform definition of hate crimes. As for hate speech, while it is not criminalized due to the First Amendment protection of speech, authorities reportedly act when hateful expressions turn into discrimination or violence. Enforcement should be in line with the International Covenant on Civil and Political Rights article 20.2, which provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
FBI gathers data on hate crimes, but reporting is voluntary. It has been suggested that it is also hugely underreported. Some groups do not trust law enforcement, have language challenges, or may be undocumented and afraid to contact law enforcement. This means that there is likely a significant undercount of reporting. African Americans are reported to be the ethnic group most affected by hate crimes and hate speech, while religious hate crimes and hate speech most frequently target Jewish and Muslim minorities. Recently there has been a significant rise in hate crimes and hate speech against Asian Americans caused by the Covid-19 pandemic, referred to by the previous administration as the “Chinese flu” or the “Wuhan virus”. Since January 2020, there has been a significant number of reports of threats, harassment, use of racial slurs and physical assaults against Asian Americans. Anti-Semitic and xenophobic conspiracies about COVID-19 have also been spreading, blaming Jews and China for creating, spreading and profiting off the virus. Overall, FBI data showed that last year hate crimes have risen to their highest level in over a decade in the United States, and that the majority of the reported hate crimes were motivated by race, ethnicity or religion bias, most targeting minorities to the extent of representing perhaps more than 70% of the hate crimes in the country.
The underreporting of hate crimes is acknowledged by the administration. Th
