A UN committee’s call last fall for the United States to create an independent national human rights institution (NHRI) has taken on new meaning in the wake of recent police violence and increasing social protest. The committee’s focus was on the international convention against racial discrimination, which the United States ratified in 1994. Their argument, supported by the non-governmental US Human Rights Network, was that the American civil rights framework is insufficient to confront racism.
While the hard-fought US emphasis on civil rights targets individual acts of discrimination, it does not address the broader structural inequalities perpetuating racism. International human rights norms imply a different kind of accountability than domestic civil rights standards. They call on governments to take steps to prevent institutionalized forms of violence, or to confront social and economic inequalities.
Demotix/James Cooper (All rights reserved)
A UN committee’s call last fall for the United States to create an independent national human rights institution (NHRI) has taken on new meaning in the wake of recent police violence and increasing social protest.
This is where an NHRI enters the picture. It would serve as a body that monitors, implements and educates about any number of human rights obligations spelled out in the Universal Declaration of Human Rights, including economic and social rights, with which US civil rights laws do not deal. If institutions elsewhere are any bellwether, it would do so imperfectly; but the question is whether having such an institution is better than not having one at all.
Despite its conventional name, an NHRI is a term of art. It refers to an administrative, quasi-governmental body mandated to promote and protect human rights domestically. First mentioned in international documents in the late 1940s, these bodies took their cue from historical precursors like the ombudsman; nineteenth century government commissions; and ironically, inter-racial bodies in America, which appeared in the interwar period and evolved alongside the country's civil rights struggles.
Though approximately two-dozen NHRIs were created before 1990, the vast majority of the 100-plus NHRIs that exist today proliferated rapidly in a post-Cold War context, part and parcel of the global discourse on democratic governance and human rights. I trace the history, proliferation, and contested significance of NHRIs in my recent book, Chains of Justice: The Global Rise of State Institutions for Human Rights, published by the University of Pennsylvania Press.
If these institutions are so popular today, and indeed few states reject the idea of creating one, why does the United States remain a holdout? Critics are correct, after all, that NHRIs can have overly expansive mandates and mixed records. And for many governments NHRIs are externally oriented symbols more than domestic agents of change. The United States itself already has the federal Civil Rights Commission and hundreds of local and state human rights agencies. Expecting a single institution to tackle complex human rights problems, skeptics note, is unrealistic—an experiment set up to fail.
How can ongoing structures of discrimination in the United States be confronted in a hyper-legalized environment, focused on individual incidents of abuse more than the underlying conditions that normalize ongoing violence and inequality? While understandable, these warnings overlook the potential value of accountability institutions, including NHRIs, in setting standards, documenting patterns of abuse, recommending changes and moving to prevent wrongdoing. How can the United States promote human rights abroad credibly when it clings to the discourse of civil, rather than human, rights? And how can ongoing structures of discrimination be confronted in a hyper-legalized environment, focused on individual incidents of abuse more than the underlying conditions that normalize ongoing violence and inequality?
The US Civil Rights Commission was last reauthorized over twenty years ago, in 1994. First proposed in a 1947 report commissioned by President Truman, To Secure These Rights, and established a decade later in 1957, the Commission has a distinguished (if uneven) history in shaping civil rights laws and discourse. As I discuss in Chains of Justice, the Commission has always helped to ensure that America’s rights struggles would remain primarily a domestic concern. Fast-forward to 2015, and a re-imagined Civil Rights Commission—reconstituted as an independent human rights body—should not be out of the question.
Skeptics caution that an NHRI that promotes the ratification of human rights treaties would be an activist agency; yet human rights advocacy, they claim, should be left to non-profit organizations. Governmental agencies should enforce the law, and US law does not recognize the economic, social and cultural rights integral to international standards.
The concern that an NHRI would be advocate more than enforcer is misplaced. It suggests that human rights abuses in the United States are aberrant or exceptional, and change is unnecessary—an ethically questionable view. It is also technically flawed in assuming that NHRIs must promote all international laws. The Paris Principles, which regulate (and serve as the basis for accrediting) today's NHRIs, call on these agencies to assess compliance with "international human rights instruments to which the State is a party."
Arguments opposing the creation of an NHRI in the United States are couched in legalized terms but reveal fear of change. To resist an NHRI because it may promote treaty ratification is profoundly undemocratic in its unwillingness to allow debate and contested viewpoints within the state. Strategic innovation in any complex organization thrives on ensuring a diversity of perspectives. Why should the regulation of human rights be any different? More fundamentally, opposing an NHRI for the United States exposes an uncomfortable truth: some US leaders and members of the public deem racial discrimination wrong, while deep social and economic inequalities seem to be acceptable, even when these systematically intersect with race, gender or other bases of discrimination.
Whether or not the United States creates an NHRI, the debate itself is significant, acknowledging entrenched racism and shared responsibility. A government that promotes human rights abroad must confront inequality at home, and these confrontations are best played out in public deliberative institutions, rather than in violent street clashes. An NHRI in the United States would not end human rights abuses, including racism, but it might help shift the terms of the debate in ways that could, over time, shape policies for the better.
Transforming the country’s Civil Rights Commission into a Human Rights Commission would be a bold step for the United States, an opportunity to join this global trend.
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