Wednesday, June 23, 2021
By Mary Hansel, UC Irvine School of Law
As this blog has highlighted, the U.S. recently submitted its country report to the U.N. Committee on the Elimination of Racial Discrimination (CERD). Notably, the report contains scattered references to county and city governments and their activities related to racial justice. The report mentions the role of these governments in addressing issues such as hate crimes, maternal mortality, environmental justice and police use of force—indeed, local governments are often on the front lines of such issues. Yet there is no meaningful assessment of their human rights records, nor any indication that they submitted information or analysis for the current reporting cycle. This absence is not surprising given that local governments in the U.S. have rarely engaged with treaty body reviews.
Several international and domestic sources, however, lend support for the idea that local governments should be active participants in these reviews. The texts of the core human rights treaties ratified by the U.S., including the International Convention on the Elimination of All Forms of Racial Discrimination, make clear that each treaty’s obligations apply throughout all levels of government. In their Concluding Observations, treaty bodies have underscored the pervasive reach of these obligations; for example, CERD has emphasized that the U.S. “is bound to apply the Convention throughout its territory and to ensure its effective application at all levels, federal, state, and local.” Meanwhile, the so-called “federalism understanding,” which the U.S. has attached to treaties upon ratification, demonstrates Congress’ intent to carve out distinct roles for local governments in treaty implementation.
Additionally, in 2019, the U.N. High Commissioner for Human Rights issued a report on the importance of local governments in protecting and promoting human rights. The report concludes that “more sustained engagement by local governments is required, particularly with the United Nations human rights protection system.” To this end, the report explicitly calls for local governments to be “more engaged in both State preparations for and State delegations attending the sessions of . . . the treaty bodies” and to supply information “for inclusion in national reports submitted to the human rights mechanisms.”
Moreover, at least one U.S. state has passed legislation laying the foundation for local reporting to treaty bodies. In California, the legislature passed a 2010 Concurrent Resolution urging local governments within the state to report on their human rights efforts. The Resolution acknowledges that the ratified treaties require reports from all levels of government and, thus, treaty bodies “expect to receive information at the local level in all future United States reports.” Accordingly, the Resolution directs the California Attorney General to distribute templates for use by counties and cities in preparing their reports.
These sources provide a basis for local governments to step into their roles of front-line human rights actors and actively participate in treaty body reviews (as well as the Universal Periodic Review). Their participation could yield substantial benefits, including: giving treaty bodies a more complete understanding of the human rights landscape across jurisdictions, promoting human rights transparency and accountability within local governments and helping to foster a robust and widespread human rights culture in the U.S. In light of such benefits, human rights advocates might consider exploring ways in which they can encourage local governments to engage with treaty body reviews and support them in doing so.