Fair Housing A Global Perspective Fair Housing Law and Litigation Conference San Diego, CA February 11, 2015

U. S. Constitution “all treaties made or which shall be made under the authority of the United States, shall be the Supreme Law of the Land” Article VI

The U.S. is a Signatory on Two Treaties that Protect Human Rights International Covenant on Civil and Political Rights (ICCPR) – 1992 International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)

Rights Under ICERD ICERD is legally binding for member State parties; the United States as a signatory is obligated to uphold and implement all provisions of the Convention.

Fair Housing is a Protected Right Under International Law

Article 1 - Definition of Racial Discrimination “Any distinction, exclusion, restriction or preference based on race, color, 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.” Article 1 (ICERD)

Article 2 Eliminate Racial Discrimination Not to engage in any act or practice of racial discrimination; To ensure that all public authorities and institutions do not engage in any act or practice of racial discrimination; Not to sponsor, defend or support racial discrimination by any person or organisation; To review policies and to amend or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination.

Article 2 Article 2 (2) allows for special measures (also named as affirmative action, affirmative measures or positive action) for the benefit of racially or ethnically disadvantaged groups or individuals.

General Recommendation 32 “to treat in an equal manner persons or groups whose situations are objectively different will constitute discrimination in effect, as will the unequal treatment of persons whose situations are objectively the same.” Paragraph 8

General Recommendation 32 A wide range of measures are possible, including “the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture, and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments.” Paragraph 13

Article 3 – Racial Segregation and Apartheid Article 3 prohibits all forms of racial segregation in all countries, including unintended segregation in housing and/or education. States also have the obligation to eradicate the consequences of such practices undertaken or tolerated by previous Governments.

Article 4 -Prohibition of racial incitement The dissemination of ideas based upon racial superiority or hatred; Incitement to racial discrimination; Acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin; Provisions of any assistance to racist activities, including their financing.

Article 5 - Equality in the Enjoyment of Rights Right to equal treatment before the tribunals and all other organs administrating justice; Right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; Right to a whole series of political, civil rights, economic, social and cultural rights;

Article 6 – Remedies for Racial Discrimination States are obliged to assure everyone within their jurisdiction has: Effective protection and remedies against any acts of racial discrimination; and the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

Article 7 - Education Article 7 requires States to adopt immediate and effective measures, particularly in the fields of teaching, education and culture: To combat prejudice which lead to racial discrimination; and Promote understanding, tolerance and friendship among nations and racial or ethnic groups;

General Recommendation 13 “In the implementation of Article 7 of the Convention, the Committee calls upon States parties to review and improve the training of law enforcement officials so that the standards of the Convention as well as the Code of Conduct for Law Enforcement Officials (1979) are fully implemented.”

General Recommendation 17 Promote respect for human rights and the exercise thereof, free from any discrimination, as expressly stated in Article 5 of ICERD; Examine official policies towards the protection against racial discrimination; Monitor laws so that they comply with the provisions of ICERD; Educate the public as to the obligations which the States parties assume under ICERD.

CERD Concluding Observations of the United States On August 29, 2014 the Committee on the Elimination of Racial Discrimination Released its findings on the United States of America’s compliance with the ICERD

Relevant Observations of the CERD Ensuring the availability of affordable and adequate housing for all, including by effectively implementing the Affirmatively Furthering Fair Housing requirement by the Department of Housing and Urban Development, across all agencies administering housing programmes;

CERD Recommendations Strengthening the implementation of legislation to combat discrimination in housing, such as the Fair Housing Act and Title VIII of the Civil Rights Act of 1968, including through the provision of adequate resources and increasing the capacity of the Department of Housing and Urban Development;

CERD Recommendations Undertake prompt, independent and thorough investigation into all cases of discriminatory practices by private actors, including in relation to discriminatory mortgage lending practices, steering and red-lining; Hold those responsible to account; and Provide effective remedies, including appropriate compensation, guarantees of non-repetition and changes in relevant laws and practices.

CERD Recommendations It also recommends that the State party allocate sufficient resources to ensure effective access to legal representation …in civil proceedings, particularly with regard to proceedings that have serious consequences for their security and stability, such as evictions, foreclosures…

Conclusions Fair Housing is a Protected Human Right The Duty to Affirmatively Further Fair Housing is a mandatory duty under international law Discrimination based upon Disparate Effect and Unequal Treatment are covered under international law We should use this newly discovered tool throughout “the full span of legislative, executive, administrative, budgetary and regulatory instruments”