Written by Hope Lewis, Northeastern University School of Law professor
The following is an essay for SCOTUS blog’s symposium on Arizona v. United States by Hope Lewis, professor of law at Northeastern University School of Law. Professor Lewis serves on the Executive Council of the American Society of International Law and on the Society of American Law Teachers Board of Governors. She co-authored Human Rights and the Global Marketplace: Economic, Social, and Cultural Dimensions (Brill 2005), co-edits the SSRN abstracts journal Human Rights & the Global Economy, and contributes regularly to the blog IntLawGrrls.com. The opinions expressed are her own and do not necessarily reflect those of any organization with which she is affiliated.
Serious implications for U.S. foreign policy interests and U.S. compliance with international human rights standards will be at stake if the Supreme Court considers Arizona SB 1070’s constitutionality.
The Ninth Circuit’s decision in United States v. Arizona is consistent with U.S. obligations under international human rights law as well as the Constitution. It at least partially protects the significant national interest in the conduct of foreign policy between the U.S. and Mexico as well. The decision upheld U.S. District Court Judge Susan R. Bolton’s preliminary injunction against key portions of Arizona’s infamous “Support Our Law Enforcement and Secure Neighborhoods Act,” also known as Arizona S.B. 1070, as amended by Arizona H.B. 2162.
Migrants and human rights in the United States
Migrants to the U.S. have fundamental human rights recognized under international law. Our government has been reminded of that fact by authoritative international experts. For example, in a 2008 report to the UN following his mission to the United States, Dr. Jorge Bustamante, who serves as the UN Special Rapporteur on the Human Rights of Migrants, noted “with dismay” that
The … United States lacks a clear, consistent, long-term strategy to improve respect for the human rights of migrants. Although there are national laws prohibiting discrimination, there is no national legislative and policy framework implementing protection for the human rights of migrants against which the federal and local programmes and strategies can be evaluated ….
The primary task of …such a national policy should be to recognize that, with the exception of certain rights relating to political participation, migrants enjoy nearly all the same human rights protections as citizens….
The international human rights implications of Arizona S.B. 1070
International monitoring and compliance bodies have taken direct note of the Arizona controversy, as well as other U.S.-based anti-immigrant measures. Shortly after Arizona S.B. 1070 was enacted, several UN independent experts and special rapporteurs issued a joint statement raising strong concerns about its status under international law. They warned that a “disturbing pattern of legislative activity hostile to ethnic minorities and immigrants has been established with the adoption of an immigration law that may allow for police action targeting individuals on the basis of their perceived ethnic origin.…” The experts further called on the State of Arizona and the United States government “to take all measures necessary” to ensure that the Arizona law and other immigration control mechanisms are carried out in a non-discriminatory manner.
The Obama administration itself also briefly placed S.B. 1070 into international human rights context. In an August 2010 submission to the UN Human Rights Council as part of the “Universal Periodic Review” (UPR) process, the U.S. Department of State referred to the Justice Department’s complaint in United States v. Arizona as an example of national efforts to comply with international human rights obligations.
Further, the administration describes international human rights as a matter of national interest. According to the State Department, “The United States understands that the existence of human rights helps secure the peace, deter aggression, promote the rule of law, combat crime and corruption, strengthen democracies, and prevent humanitarian crises.”
U.S. foreign policy and the global economy
Recognizing that the effects of the Arizona legislation are likely to be transnational, the Mexican government filed an amicus curiae brief in the Department of Justice litigation. It argued that S.B. 1070 interferes significantly with cross-border arrangements on trade, labor, tourism, migration, and crime control as well as other aspects of international relations between the U.S. and Mexico. Further, the brief took the position that Arizona S.B. 1070 may violate the civil and human rights of Mexican nationals who travel in Arizona as well as the rights of U.S. citizens of Mexican or other Latino/a descent.
Arizona S.B. 1070, the copycat state laws that followed, and the legal and political reactions to them, are intricately tied to our struggle to elaborate appropriate roles for the U.S. in a global economy. Information, commerce, goods, and services now move freely and rapidly throughout the globe. It stands to reason that people will do so as well. Whether the U.S. responds to such migration flows with a haphazard “patchwork” of ill-advised laws, or instead with a comprehensive approach to immigration reform that respects the fundamental human rights of all is a vital indicator of our future under globalization.
Racial discrimination in the international human rights context
Arizona S.B. 1070 raises concerns under several core international human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ratified by the U.S. in 1992). But human rights advocates, including Human Rights Watch, have focused primarily on the implications of S.B. 1070 for U.S. compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Adopted by the UN General Assembly in 1965, entered into force in 1969, and ratified by the United States in 1994, ICERD’s provisions are deeply informed by the realities of post-World War II racial discrimination.
The treaty requires parties to take measures to prevent, prohibit, and condemn all forms of racial discrimination. It requires the United States to make periodic compliance reports to the Committee on the Elimination of Racial Discrimination. Further, ICERD requires the U.S. to ensure that its branches and agencies as well as state and local authorities are fully informed about the country’s international legal obligations and their roles in helping to fulfill them.
Specifically, under Article 2,
1) States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. …
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;….
In January 2010, at least partially in response to NGO advocacy and concerns about anti-internationalist perceptions in some quarters at state and local levels, Department of State Legal Adviser Harold Koh issued an advisory letter to governors of the fifty states. The letter alerted them to the federal government’s obligation to make periodic and other reports in compliance with international law treaties and standards. The letter also emphasized the related obligations of subnational states to support and comply with the country’s reporting and other human rights commitments.
Despite such awareness-building efforts, even brief references by Department of State officials to the litigation in United States v. Arizona that were included in a diplomatic meeting with China and in a UPR report to the UN Human Rights Council were castigated by Arizona Governor Jan Brewer as “internationalism run amok.”
Defining racial discrimination under international law
Article 1 of ICERD broadly defines “racial discrimination” as follows:
1. … any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality….
The definition’s wide scope reflects a sophisticated and pragmatic understanding of how discrimination operates in the real world. Rather than attempt to define the socially constructed meaning of “race” itself, the drafters drew on the lived realities that the convention was intended to address—the horrors of slavery, colonialism, the Holocaust, genocide, apartheid, and racial segregation as they actually operated. They understood that such discrimination could be explicitly articulated in illegitimate laws and in supremacist or genocidal edicts by dictators. But they also understood that racial bias can be subtly facilitated through facially neutral laws and structures that affect disfavored groups disproportionately. They understood that individuals and groups can be “raced” not only on the basis of skin color, but also on stereotypes about ethnicity, descent, or national origin.
ICERD’s application to noncitizens
ICERD Article 1(2) and (3) allow for sovereignty-based exceptions from the definition of racial discrimination for the national power to regulate citizenship status and immigration flows. Nonetheless, those sovereignty exceptions were never to be read as carte blanche for racial discrimination against noncitizens. In fact, the Committee on the Elimination of Racial Discrimination, the body charged with monitoring compliance and providing authoritative interpretive guidance on the treaty, has now clarified its application to noncitizens.
In its 2004 General Recommendation No. 30: Discrimination Against Noncitizens the Committee states that the citizenship and immigration regulation exceptions in Article 1 of ICERD do not condemn noncitizens to a human rights-free zone. In the Committee’s view:
Article 1, paragraph 2, must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights….
Article 5 of the Convention incorporates the obligation of States parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. Although some of these rights, such as the right to participate in elections, to vote and to stand for election, may be confined to citizens, human rights are, in principle, to be enjoyed by all persons. States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law….
Arizona S.B. 1070 and racial profiling
Not surprisingly given the law’s vagueness, internal contradictions, and breadth, human rights, civil rights, and immigrants’ rights organizations charge that Arizona S.B. 1070 is likely to mask or encourage widespread official racial and ethnic profiling. Such profiling is likely to have a disproportionate impact, particularly on Latino/as, indigenous peoples, and other racial and ethnic minorities, whether or not they are lawfully present in the state.
Such profiling falls within ICERD’s definition of racial discrimination and places the U.S. in danger of violating international law. Arizona defends this aspect of its law by arguing that Arizona H.B. 2162, which amended language in S.B. 1070, specifically cures the concerns about racial profiling and official discrimination. For example, language was added to the legislation stating that “[t]his section shall be enforced without regard to race, color, religion, sex, age, disability or national origin.”
But the potential for racial profiling cannot be dismissed so easily. ICERD’s broad definition of racial discrimination does not require explicitly articulated racial animus. Rather, racially discriminatory laws and policies that effectively interfere with the enjoyment of a panoply of fundamental human rights are sufficient to violate obligations under the treaty. Facially neutral laws and policies or even those that explicitly “prohibit” discrimination can still have an empirically disproportionate and demonstrable negative impact on a particular racial, ethnic, or national group in practice.
Arizona S.B. 1070 requires police officers and other authorities to take certain measures if they have a “reasonable suspicion” that a person is an unauthorized alien. Such a vague and subjective standard will, in many circumstances, act as an easily accessible cover for racial discrimination and xenophobia, especially in a political environment that implicitly or explicitly rewards such behavior.
Rather than specify the criteria that could lead to a “reasonable suspicion” about unauthorized status, even well-intentioned officers may be left instead to rely on subjective beliefs and stereotypes. They will be tempted to use color of skin, physical appearance, language, accent, or national origin as proxy indicators of unauthorized or alien status prior to obtaining identification papers. Members of Latino/a communities, indigenous peoples, and other minorities are likely to be targeted, whether they are citizens, tourists, students, businesspeople, or undocumented workers. As similar laws mushroom throughout the country, similarly specious and unreliable indicia of minority status or “foreign-ness” will be used.
As noted above, ICERD requires those national states that ratify the treaty to take appropriate measures to prevent, prohibit and condemn racial discrimination. That includes ensuring that subnational states and local authorities adhere to the treaty’s requirements in implementing U.S. law. Next term, we are likely to learn what the U.S. Supreme Court has to say about the federal preemption question raised by the S.B. 1070 challenge.
Federal, state, and local courts and governments are not the only ones that are engaging with international human rights standards in reference to Arizona S.B. 1070 and similar laws, however. NGO coalitions submitted shadow reports to the United Nations on the government’s compliance with ICERD. Other civil society groups took advantage of opportunities to participate in the country’s 2010-2011 Universal Periodic Review process. Advocates articulated the “Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens” (guidelines advocating for anti-discrimination, health, educational, cultural, housing, family unity, and labor rights).
Further, state and local legislation like New York’s Domestic Workers’ Bill of Rights demonstrate that human rights-friendly and constitutional measures affecting migrant communities can be adopted at all levels of government.
In the likely review of United States v. Arizona, the Roberts Court should address the important international human rights and foreign policy implications raised by Arizona S.B. 1070. If such state laws threaten to place the U.S. in violation of international human rights standards, interfere with international economic and political relations, and complicate, or conflict with, the implementation of federal priorities on migration, then the Court should affirm the Ninth Circuit’s decision on preemption grounds.
Further, in a global economy, the U.S. can no longer afford to ignore, or give short shrift to, the international and transnational human rights implications of migration. Recent estimates put the number of first- and second- generation immigrants in the U.S. at more than 60 million people. Migration law and policy are matters of core national interest. All branches and levels of the U.S. government, therefore, face a choice between a false insularity and isolationism or an inclusive approach to U.S. performance on the world stage.
States and local entities can, and should, play a role in immigration law and policy. But those roles must be taken on in accordance with constitutional standards. In turn, our nation as a whole must more fully embrace human rights for all, including migrants, as we move toward a more responsible place in the international community.
Cross-Posted at SCOTUSblog “Human Rights Implications of Arizona v. U.S.” and IntLawGrrls “Human Rights Implications of Arizona v. U.S.”