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‘Early Warning/Urgent Action’ Sought Against US Human Rights Violations at Border Wall

A group representing human, indigenous and women’s rights accuses the United States of violating international human rights laws and private property rights in constructing the security wall along the Mexican border and has asked the United Nations Committee on the Elimination of Racial Discrimination (CERD) for help to stop the violations.

Ariel Dulitzky, director of the Human Rights Clinic, School of Law, University of Texas at Austin, Dr. Margo Tamez (Lipan Apache) on the faculty of the University of British Columbia Okanagan teaching Indigenous Studies, and the Lipan Apache Women Defense, an Indigenous Peoples organization, submitted a request May 10 asking CERD to intervene to stop the continuing “negative impact” of the border wall. “The construction of the wall occurred in a discriminatory manner, and continues to have discriminatory effects. The intervention of the CERD, utilizing its Early Warning and Urgent Action procedures, is necessary to stop the harm that the border wall is continuing to inflict on indigenous communities and poor Latinos,” Tamez and Dulizky write.

Ironically, 18 years after President Ronald Reagan stood at the Brandenburg Gate near the Berlin Wall on June 12, 1987 and exhorted Soviet Union General Secretary Mikhail Gorbachev to “Tear down this wall!” – meaning the Iron Curtain, which was both a physical and metaphorical dividing line between the political, military, and ideological worlds of repressive Russian communism and the free democracies of the west, particularly the United States – the U.S. in 2005 began enacting legislation to allow the government to build wall along part of the 2,000-mile border between the U.S. and Mexico. First came the Real ID Act in 2005; followed by the Secure Fence Act in 2006; and the Consolidated Appropriations Act of 2008, mandating a barrier construction of at least 700 miles. By the end of 2008, 670 miles of the wall was under construction, but it had already caused such extensive environmental damage that the Department of Homeland Security (DHS) promised to spend up to $50 million in 2009 for “reasonable mitigation measures” to compensate for the damage or loss of animal and plant habitat and cultural areas like American Indian religious sites, according to the New York Times.

“The construction of the Texas-Mexico border wall has created irreparable and continuous harm through its racially discriminatory effects on the communities that live alongside the southwestern border of the U.S.,” Dulitzky and Tamez write in the 134-page document filed with CERD Secretary Gabriella Habton. “The wall has abrogated these communities' property and land rights, equal protection rights, indigenous rights, and right to juridical personality, and has severely prevented their full enjoyment of fundamental basic rights as guaranteed in the International Convention on the Elimination of Racial Discrimination.” The community’s minimum demand is that the wall be taken down, that the lands be returned to all impacted people, that the president of the United States formally apologize to the communities affected by the wall, and that a Truth Commission be formed to investigate the injustices and perform necessary redress, restitution, and reparation.

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CERD is a treaty monitoring body that reviews racial equality and non-discrimination for the International Convention on the Elimination of All Forms of Racial Discrimination. All states are required to submit regular reports to CERD on how they are implementing the Convention. The CERD examines the reports and reviews alternative or “shadow reports” from “civil society actors.” The committee completes a formal review of each state every four years and issues recommendations.

Tamez and Dulitzky’s request for intervention under CERD’s “Early Earning and Urgent Action” procedures comes just months before the U.N. watchdog body is scheduled to conduct a full review of the status of human rights and racism in the U.S. CERD’s last report in February 2008 found racial discrimination flourishing in 26 areas where the U.S. government fell short on its obligations, beginning with its definition of “racial discrimination,” which was also cited as inadequate in an earlier report. The Convention requires states parties to prohibit and eliminate racial discrimination “in all its forms, including practices and legislation that may not be discriminatory on purpose, but in effect.”

The 2006 Secure Fence Act gave the government the ability to waive any laws that could possibly interfere with the construction of the wall. The DHS subsequently waived 36 federal and state laws, including laws for the protection of Indigenous Peoples and key pieces of environmental protection legislation, Tamez and Dulizky write.