Wednesday, December 10, 2014

On Human Rights Day: Isn't it Time for a U.S. Human Rights Institution?

by Risa E. Kaufman

On this Human Rights Day, it seems particularly compelling to renew the call for a national human rights institution (NHRI) in the United States. Every week offers new and stark examples of the need for continual, vigilant and independent review of the nation’s commitment to and compliance with its international human rights commitments. Yet, the U.S. has no central body to monitor and report on human rights compliance by federal, state and local authorities, and no independent body to assess legislation, policies and practices in light of human rights principles and impacts. This is in sharp contrast to the over 100 countries around the world with national human rights institutions (though, to be sure, these institutions vary in form, function and effectiveness).

The range of pressing issues explored during yesterday’s hearing by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights on the State of Civil and Human Rights in the United States underscores the urgent need for such a mechanism. Indeed, we’ve just concluded an extraordinary year in which U.N. expert committees reviewed the U.S. for its compliance with each of the core human rights treaties that it has ratified, and issued hard hitting, and remarkably consistent, recommendations for how the U.S. can improve its human rights record. Yet, there is no independent and comprehensive mechanism for analyzing and assessing the resulting Concluding Observations, or for communicating the treaty bodies’ recommendations to the state and local officials with front line responsibilities for ensuring that the U.S. meets its human rights obligations.

In the course of reviewing the United States, both the Committee on the Elimination of All Forms of Racial Discrimination and the Human Rights Committee noted concern with the lack of a national human rights institution within the U.S., and urged the United States to create such an institution. The CERD Committee, in particular, urged the U.S. to:  "create a permanent and effective coordinating mechanism, such as a national human rights institution … to ensure the effective implementation of the Convention throughout the State party and territories under its effective control; monitor compliance of domestic laws and policies with the provisions of the Convention; and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels."

 When asked by U.N. treaty bodies what steps it is taking to develop an NHRI, the U.S. demurs, pointing to “multiple complementary protections and mechanisms” in the United States which “serve to reinforce the ability of the United States to guarantee respect for human rights, including through its independent judiciary at both federal and state levels.” Yet, these are no replacement for an independent human rights monitoring body.

 The U.S. need not start with a blank slate in developing an NHRI. A set of non-binding international principles (“The Paris Principles”) endorsed by the U.N. General Assembly establishes minimum standards for such institutions. As a general matter, they call for NHRIs to have a broad mandate, take on advisory, educational and internationally participatory roles, and be politically independent and comprised of a pluralistic membership. Significantly, the Paris Principles explicitly call upon national human rights bodies to “setup local or regional sections” or “maintain consultation with the other bodies . . . responsible for the promotion and protection of human rights.”

U.S. advocates have called for a U.S. human rights institution with a broad mandate to address the full range of human rights concerns in the United States, and with the ability to monitor human rights compliance, raise awareness of civil and human rights norms, engage with government officials, and investigate how policies play out on the ground in local communities. This could be done through fact-finding, advising and report writing, research, agency monitoring, and engaging with civil society and with regional and international human rights bodies. Some or all of these functions could be done through the existing U.S. Civil Rights Commission.

 Alongside (and until) a U.S. human rights institution, state and local human rights commissions can help to fill the gaps in human rights monitoring and review. Indeed, some are beginning to do so. Earlier this year, the Tennessee Human Rights Commission held a series of four hearings in communities across the state, examining issues including employment discrimination, housing, access to programs and services, justice and law enforcement, immigration, discrimination faced by the LGBT community, voting rights, homelessness, disability rights, education, and violence against women. Last month, the Commission issued a report summarizing the testimony and recommendations collected at the hearings. Berkley’s Peace and Justice Commission submitted a municipal report this year to the U.N. Committee Against Torture examining local issues including overpolicing, state prison conditions, and hate crimes. There are many other examples, too.

 The energy and momentum built throughout the past year of U.S. human rights treaty reviews, coupled with the remarkable activism and advocacy of recent weeks, should fuel the conversation for how to sustain critical examination of the U.S.’s compliance with its international human rights obligations, and promote human rights more generally. A U.S. human rights institution would go a long way.

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