The Promise and Limits of Local Human Rights Internationalism

Abstract

For many people across the globe, human rights remain aspirational. American politicians and diplomats often speak of the need to improve human rights abroad in places such as China, Sudan, and North Korea. Popular political discourse recognizes much less often the need to turn inward and improve our own government’s human rights behavior, be it federal, state, or local. Despite the lack of mainstream support, for the last several years, NGOs and academics have increasingly criticized the failure of domestic actors to successfully bring human rights home. These critiques have given way to a second stage in the struggle — the articulation of justifications, structures, and specific policies for implementing domestic human rights.

This piece is the fourth of a multi-part series of papers that takes a supportive but also critical approach to the project of bringing international law home. The first three pieces documented the existence of apathetic and intransigent federal actors; identified the role of sub-federal actors; and proposed that states and localities undertake human rights review of pending legislative and agency actions. As a part of this larger project, this paper once again focuses on cities as a vital pathway for the movement from the international to local. Like the prior works, this paper mixes theories, hypotheses, and case studies to illuminate the potential for bringing international law home. While the nation-state remains an extremely important player in the formation and enforcement of international law, international law also influences behavior by moving through sub-federal actors and regional sites. Sometimes this change occurs at the national government’s behest, but oftentimes it also occurs when other government actors bypass those nation-states resistant to its pull. This paper seeks to explain why and how cities in particular can play an important role in bringing human rights home.

In the fifth and final paper, I anticipate concluding this discussion by looking closely at various methods to move human rights into the administrative state. Before moving into this final component, however, this current paper needs to first explain the role of cities in the overall project. In recent years, international law scholarship has moved beyond a statist conception in which only national governments create and then implement international law. Rather, bodies at all levels ranging from the transnational, such as regional consultative process and more formal international institutions, to state legislatures and state courts, to the most local unit of cities have all become active participants in the project of enshrining human rights in law. This paper investigates both domestic and international examples of cities acting as norm entrepreneurs in voluntarily implementing treaty based human rights. While previous works mostly took as a given federal inactivity in regards to human rights treaties, Part I reviews the numerous historical, political, and structural reasons for the limited federal efforts to integrate human rights treaties at home. These include the institutional objections of International Federalists, the substantive objections of Positive Rights Rejecters, and the political discretion concerns of the Flexible Foreign Policy Advocates. Although a domestic constituency supportive of human rights exists, until recently, such groups have focused on human rights promotion rather than internal integration. I then link these political objections to the various structural hurdles that treaties must pass through.

Part II articulates some reasons why some cities might be more likely first movers. These include structural advantages, possible political homogeneity, and enhanced capacity to generate visible benefits for their constituents. In undertaking those efforts to integrate human rights, cities might create some local benefits that exist above and beyond mere substitution for federal action. I also wish to identify some of the city-specific gains that may arise from local implementation. Cities can capture good governance gains independent of whether the federal government decides to act. As they are often the provider of basic social services and possess a large bureaucracy, citizens can gain from subjecting those bureaucracies to human rights regardless of what states and the federal government decide to do. So even in those instances in which the federal government acts to bring human rights home, cities can supplement and reinforce those efforts by acting as laboratories and providing an additional layer of protection by promoting good government. This section, however, counsels caution for those who believe cities to be a likely motivator of federal behavior. Many of the same factors that allow cities space to act also serve as impediments to effective state and federal spillovers. While cities can perform much significant work bringing human rights home, we must simultaneously acknowledge that they also labor under significant structural and political constraints.