Affirmative Action and the Equality Principle in Human Rights Treaties: United States' Violation of Its International Obligations

Abstract

This essay demonstrates that the United States violates provisions of international treaties and thereby United States law in failing to take affirmative action to remedy racial and gender inequality. It begins by analyzing the affirmative action provisions in two treaties ratified by the United States - the Convention on the Elimination of All Forms of Racial Discrimination, and the International Covenant on Civil and Political Rights. The affirmative action requirements in the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Economic, Social and Cultural Rights, which the United States has signed, but not ratified, are also detailed. This essay then explains that well-established principles of international law require the United States to abide by treaties that it ratifies, and to refrain from taking any action inconsistent with treaties it has signed. These principles of international law are effectively incorporated into the Federal Constitution's Supremacy Clause, which describes all treaties as United States law, without reference to whether a particular treating is self-executing. This essay also discusses the current constitutional standards with respect to affirmative action and shows that United States treaty obligations constitute a compelling governmental interest supporting affirmative action programs. It does a comparative analysis of affirmative action in other countries. Finally, this essay provides examples of racial and gender inequality in the United States and contends that the persistence of inequality violates the United States treaty obligations to take affirmative action to achieve racial and gender equality.