Executing Racial Justice


The United States has failed to eliminate racial discrimination in the decades since ratifying the international human rights treaty that prohibits it. To its credit, the Biden administration (Administration) has attempted to center the fight for racial equity in the work of the executive branch. But President Biden’s executive orders and agency action plans on racial justice omit any reference to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), even though the treaty imposes robust, binding duties and standards for the fight to end pervasive racism. As President Biden enters the final months of his term, facing a legislature hamstrung by partisan divide, the time is ripe for decisive executive action to implement the treaty. Writing against a background of governmental and scholarly neglect of the duty to implement even non-self-executing human rights treaties, this Essay proposes several novel strategies the Administration could pursue. These include paying careful attention (and making formal reference) to ICERD obligations in ongoing executive action on equity; updating existing executive branch nondiscrimination frameworks to take the ICERD into account; and formally requiring agency action, including rulemaking, to advance compliance with the ICERD. Such actions carry tangible benefits, including driving dialogue about the extent of U.S. compliance with international law and adding fodder to new agency and enforcement actions, particularly where the ICERD is more protective than existing domestic precedent. Decisive executive action on racial justice that honors U.S. treaty obligations would set an important precedent and leverage the utility of international standards for remedying human rights violations in the United States.