REPORTING ORGANIZATIONS

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1 Ensuring Human Rights Implementation at the Federal, State and Local Levels in the United States Submission to the U.N. Working Group on People of African Descent REPORTING ORGANIZATIONS The Human Rights Institute serves as the focal point of international human rights education, scholarship, and practice at Columbia Law School. The Institute s Human Rights in the U.S. Project builds the capacity of U.S. lawyers, policymakers, and advocates to incorporate a human rights framework into domestic social justice advocacy efforts. The International Association of Official Human Rights Agencies (IAOHRA), founded in 1949, is a non-profit membership association of over 150 state and local statutory civil and human rights and human relations agencies mandated by state, county or city governments to enforce human and civil rights laws, and/or to conduct research, training, and public education. The information presented here is based upon interviews and outreach to state and local agencies and officials, as well as independent research conducted by the Columbia Law School Human Rights Institute, in partnership with state and local actors. 1 ISSUE SUMMARY In the United States, subnational government actors are essential to human rights implementation. This includes the over 150 state and local agencies that enforce human and civil rights laws (State and Local Agencies); governors; state attorneys general; mayors, legislators; and law enforcement. State and local actors have jurisdiction over a range of human rights issues, such as discrimination in housing, education, and criminal justice. 2 In recent years, the U.S. has repeatedly affirmed that state and local governments play in a pivotal role in comprehensive human rights implementation 3 and taken some encouraging steps to communicate with them on human rights. 4 However, the U.S. continues to lack a comprehensive or coordinated approach to human rights promotion and protection at the federal, state, and local levels: There is no institutionalized federal infrastructure to support human rights education, monitoring, and implementation, or to offer guidance on human rights. There is no individual or agency specifically designated to disseminate and follow up with state and local actors regarding recommendations from U.N. treaty bodies, the UPR, or U.N. Special Procedures. The United States lacks a national human rights monitoring body, such as an NHRI. 1

2 What currently exists at the federal level is an ad-hoc and under-resourced approach to human rights education, reporting, and implementation, without meaningful avenues for state and local government participation. 5 As a result, there are significant gaps between the U.S. human rights commitments and state and local practice. Many state and local actors lack the capacity necessary to effectively monitor and implement human rights because they are unaware of human rights treaties, and face resource and staffing constraints. A comprehensive and effective approach to human rights implementation will require federal mechanisms and initiatives to support and coordinate state and local efforts to comply with international human rights treaty standards. Critical components of such an approach include human rights education and training for state and local governments, as well as tangible resources and support for their efforts to promote and protect human rights. LEGAL FRAMEWORK ICCPR Article 50; CERD Articles 2 and 7; CAT Articles 2 and 10. According to the U.S. Constitution, ratified treaties constitute the supreme Law of the Land. 6 As the U.S. affirmed when ratifying the ICCPR, CERD, and CAT, federal, state, and local authorities share responsibility for implementing international human rights obligations. 7 Such shared authority is consistent with international law, which permits the United States to delegate human rights implementation to subnational governments, while remaining ultimately responsibility for treaty compliance. 8 While existing case law and the U.S. federal system prevent the federal government from compelling state and local governments to comply with human rights obligations, 9 there are numerous avenues available for the federal government to support, incentivize, and encourage state and local human rights implementation. 10 RELEVANT U.N. RECOMMENDATIONS TO THE UNITED STATES The treaty bodies have emphasized the need for the U.S. to establish a more comprehensive approach to human rights monitoring and implementation. In 2014, the Committee on the Elimination of All Forms of Racial Discrimination called for a permanent mechanism to coordinate monitoring and education at the state and local levels. 11 The Human Rights Committee also called for expanded human rights monitoring mechanisms and financial and human resources to support these efforts. 12 In its last review of the United States, the Committee on the Rights of the Child similarly voiced concern over the lack of a national human rights institution. 13 U.N. Special Procedures, including this Working Group, 14 and the Working Group on Business and Human Rights, 15 have echoed these recommendations as well. During the first and second cycle of the UPR, the U.S. accepted recommendations to incorporate human rights training and education into policies, 16 including specific training for law enforcement. 17 During the first cycle of the UPR, in 2011, the U.S. also supported recommendations to consider establishing a National Human Rights Institute, 18 but did not accept recommendations that explicitly call for the US to create an NHRI, and the U.S. response noted that the United States cannot now commit to a particular plan. 19 2

3 During the second cycle of the UPR, in 2015, the U.S. received over a dozen recommendations calling for a federal mechanism to ensure compliance with international human rights instruments at all levels of government. 20 The U.S. supported these recommendations in part. The U.S. response emphasized that the government is taking steps to strengthen federal-level coordination, and considering ways to improve implementation. 21 The U.S. response further clarified that there are no current plans to establish a single national human rights institution. 22 However, there is virtually no publicly available information on the steps the federal government is taking to strengthen coordination and improve human rights implementation and monitoring among federal agencies, or in coordination with state and local actors. RECENT PROGRESS IN OUTREACH TO STATE AND LOCAL ACTORS The U.S. s recent 2014 UPR Report offers some steps that the U.S. has taken to improve subnational human rights implementation, in absence of a federal level human rights monitoring body. This includes some training of State and Local Agencies and the inclusion of state and local officials in delegations for recent U.N. human rights reviews. 23 In the addition, the Obama Administration has taken steps in 2015 to improve communications with state and local actors: In April of 2015, the U.S. State Department s Office of the Legal Adviser disseminated U.N. treaty body Concluding Observations to state and local governments for the first time 24 (This communication was in addition to prior letters focused on treaty reporting) 25 In September of 2015, the Department of Housing and Urban Development participated in the 2015 IAOHRA conference to discuss human rights treaties. 26 While positive and important, current efforts remain ad-hoc and limited in scope. THE NEED FOR A COMPREHENSIVE & COORDINATED NATIONAL APPROACH On the International stage, the U.S. has recognized the important role of state and local actors in human rights implementation. 27 Yet, the U.S. continually offers an incomplete picture of the context in which they operate. The U.S. typically indicates that state and local governments already provide protections and mechanisms that reinforce respect for human rights. 28 However, the U.S. fails to acknowledge the challenges that state and local actors face in fully participating in human rights monitoring and implementation. These constraints range from and extend beyond limited knowledge of international human rights standards to broader structural issues. Even where state and local governments have an awareness of international human rights and the will to engage in monitoring and implementation, they have limited capacity to do so. 29 While offering a potential infrastructure for human rights implementation, the laws and mechanisms discussed by the U.S. are neither oriented around international human rights treaty standards nor adequately resourced to monitor or promote compliance with these standards. 30 Institutionalized and transparent federal mechanisms are essential to a comprehensive and coordinated approach to human rights monitoring and implementation, and to ensuring that state and local governments can reach their full potential to promote and protect human rights. 3

4 SUGGESTED QUESTION FOR THE UNITED STATES Please indicate what measures your agency, department, or office is taking to establish an institutionalized, transparent, and coordinated approach to human rights monitoring and implementation at the federal, state, and local levels, including the extent to which the federal government will support state and local efforts through human rights education, human rights training, and funding. SUGGESTED RECOMMENDATIONS To ensure effective domestic human rights implementation, and fulfill its human rights obligations and commitments, the United States, should, at a minimum: Work across federal agencies and departments to identify avenues for more comprehensive education and training for state and local agencies and officials on their human rights obligations, including U.N. recommendations. Create mechanisms to provide resources and funding to state and local agencies and officials to engage in human rights monitoring and implementation. Take proactive measures to support establishment of transparent and effective federal mechanisms mandated to coordinate with state and local officials around human rights monitoring and implementation at the federal, state, and local levels, including: o a federal focal point to coordinate and liaise with state and local actors regarding human rights implementation; o a reinvigorated Inter-Agency Working Group on Human Rights; and o a National Human Rights Monitoring Institution, such as a strengthened U.S. Commission on Civil and Human Rights. 1 This document draws from a joint 2014 stakeholder submission to the United Nations Universal Periodic Review of the United States of America, written by Columbia Human Rights Institute &the International Association of Official Human Rights Agencies, as well as Closing the Gap: The Federal Role in Respecting and Ensuring Human Rights at the State and Local Level: Response to the Fourth Periodic Report of the United States to the United Nations Human Rights Committee (2013), available at and Columbia Law Sch. Human Rights Inst., Implementing Recommendations from the Universal Periodic Review: A Toolkit for State and Local Human Rights and Human Relations Commissions (2011), available at For more information, please contact JoAnn Kamuf Ward ). 2 See Closing the Gap, supra n.1, at 8. 3 See Periodic Report of the United States of America to the United Nations Committee on the Elimination of Racial Discrimination Concerning the International Convention on the Elimination of All Forms of Racial Discrimination, 32 (June 12, 2013) [U.S. CERD Report], available at Report of the United States of America Submitted to the U.N. High Commissioner for Human Rights In Conjunction with the Universal Periodic Review (Feb. 6, 2015) [U.S UPR Report]; Annex A to the Common Core Document of the United States of America: Submitted With the Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights concerning the International Covenant on Civil and Political Rights, 129 (Dec. 30, 2011). 4 U.S UPR Report, supra n.2, Id U.S. Const. art. VI. 7 See, e.g., Reservations, Understandings and Declarations to the International Covenant on Civil and Political Rights, 138 Cong. Rec. S (daily ed. Apr. 2, 1992). 8 Article 26 of the Vienna Convention on the Law of Treaties states, every treaty in force is binding upon the parties. Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155 U.N.T.S. 33, available at 4

5 9 Medellin v. Texas, 552 U.S. 491 (2008); see also The Lawyers Committee for Civil Rights Under the Law, US Federalism and its impact on ICERD Compliance: Shadow Report Submitted to the Committee on the Elimination of All Forms of Racial Discrimination (July 2014), available at (discussing federalism and recommending specific ways that federal agencies can encourage state and local compliance with CERD in immigration, voting, education and criminal justice). 10 See, e.g., Risa E. Kaufman, By Some Other Means : Considering the Executive s Role in Fostering Subnational Human Rights Compliance, 33 CARDOZO L. REV. 1971, 2009 (2012). 11 Comm. on the Elimination of All Forms of Racial Discrimination, Concluding Observations on the combined seventh to ninth periodic reports of the United States of America, 6; 32, 85th Sess., Aug , 2014, U.N. Doc. CERD/C/USA/CO/7-9 (Aug. 29, 2014). The Committee on the Rights of the Child has also expressed concern over the lack of an NHRI. Comm. on the Rights of the Child, List of Issues Concerning Additional and Updated Information Related to the Second Periodic Report of the United States of America, 4, U.N. Doc. CRC/C/OPSC/USA/Q/2 (July 25, 2012). 12 Human Rights Comm., Concluding Observations of the Human Rights Committee: United States of America, 110th Sess., Mar , 4(b); (d), U.N. Doc. CCPR/C/USA/CO/4 (Apr. 23, 2014). 13 Comm. on the Rights of the Child, List of Issues Concerning Additional and Updated Information Related to the Second Periodic Report of the United States of America, 4, U.N. Doc. CRC/C/OPSC/USA/Q/2 (July 25, 2012). 14 Human Rights Council, Report of the Working Group of Experts on People of African Descent, 88, U.N. Doc A/HRC/15/18 (Aug. 6, 2010). 15 See U.N. Working Group on Business and Human Rights, Statement at the End of Visit to the United States (May 1, 2013), available at 16 Report of the Working Group on the Universal Periodic Review: United States of America, 92.87, U.N. Doc. A/HRC/16/11 (Jan. 4, 2011) [Hereinafter 2011 UPR Outcomes]. 17 Report of the Working Group on the Universal Periodic Review: United States of America, , U.N. Doc. A/HRC/30/12 (Jul. 20, 2015) [Hereinafter 2015 UPR Outcomes]. 18 Report of the Working Group on the Universal Periodic Review: United States of America, Addendum, A/HRC/16/11.Add.1 25 (Jan. 4, 2011), available at [Hereinafter U.S UPR Response] 19 Id See 2015 UPR Outcomes, supra n. 17, ; Report of the Working Group on the Universal Periodic Review: United States of America, Addendum, 21, U.N. Doc. A/HRC/30/12/Add.1 (Sept. 14, 2015). 22 Id U.S UPR Report, supra n.2, See Letter From Acting Legal Adviser McLeod to Washington, D.C. Mayor Muriel Bowser (April 25, 2015), available at 25 See Letter From Principal Deputy Legal Adviser McLeod to Governors of U.S. State and Territories (Feb. 18, 2014), available at 26 International Association of Official Human Rights Agencies, 2015 Conference Program, Draft Agenda, available at ken=urhmvprirsrcjzukil0cnh0i2m8%3d. 27 U.S. Ambassador Keith Harper, the Permanent Representative to the Human Rights Council, emphasized the critical role of state, local, and tribal authorities at the conclusion of the 2015 UPR: Our federal system of government also enhances protections for human rights in the United States. Different levels of government provide an additional barrier to protect individual liberties and to prevent misconduct. State, local, and tribal officials are normally the closest authorities to the people they serve. They are often best positioned to solve problems, and they are often directly accountable to local tions. Moreover, different levels of government in our federal system have been described as laboratories of democracy, because they may develop and test different and creative solutions. Where their solutions work well, these best practices may be shared and emulated elsewhere. As we work over the coming months and years to implement the recommendations that we supported today, we know that our federal system and our strong and active civil society will greatly strengthen our efforts to promote, protect, and respect human rights. Remarks by Ambassador Keith Harper (Sept. 24, 2015), available at https://geneva.usmission.gov/2015/09/24/ambassadorharper-im-very-proud-to-be-before-you-today-for-the-adoption-of-the-second-upr-of-the-united-states/. 28 U.S. CERD Report, supra n.3, 31; Common Core Document of the United States of America: Submitted With the Fourth Periodic Report of the United States of America to the United Nations Committee on Human Rights concerning the International Covenant on Civil and 5

6 Political Rights, 129 (Dec. 30, 2011), available at As part of its report to the Committee on the Elimination of Racial Discrimination, the U.S. included by reference an Annex, which provides a snapshot of state, local, tribal and territorial human rights organizations and programs and emphasizes that state and local agencies play a critical role in human rights implementation. See Annex A, supra n. 1, 1-3; See Closing the Gap, supra n The one known actor responsible for federal to state and local communities is The Special Representative for Global Intergovernmental Affairs. See Transcript of U.N. Human Rights Council Town Hall Meeting, Universal Periodic Review of the United States Human Rights Record, at 11, Nov. 5, 2010, available at Yet that office is not mandated to address domestic human rights implementation and has lacked permanent leadership for a year. See Letter from Robin Toma, Exec. Dir., Los Angeles County Human Relations Comm n, to Reta Jo Lewis, Special Representative for Global Intergovernmental Affairs (May 3, 2011) (on file with Columbia Law Sch. Human Rights Inst.). 6

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