The promise and limits of local human rights internationalism.

• Author: Wexler, Lesley

Introduction: From the International to the Local I. U.S. Federal Government as a Reluctant and Incomplete First Mover A. Objecting to the Federal Integration of Domestic Human Rights B. Linking the Political to the Structural and Procedural II. The Promise and Peril of Cities A. Typology B. Optimizing the Intersection of Political and Structural 1. Maximizing Political Homogeneity 2. Avoiding Federalism and Foreign Policy Concerns 3. Enhancing Warm Glow and Direct Gains 4. Utilizing Structural Advantages C. Limitations 1. Structural a. Federal Constitution b. State Limits 2. Limited Spillover: State, Federal, and International Conclusion INTRODUCTION: FROM THE INTERNATIONAL TO THE LOCAL

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. (1) 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 human rights 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 piece, Take the Long Way Home: Sub-Federal Integration of Unratified and Non-Self-Executing Treaty Law, (2) documented the existence of apathetic and intransigent federal actors and identified the role of sub-federal actors such as states and cities in implementing unratified and non-self-executing treaty law. In so doing, that paper acknowledged the significant federal limits on such behavior and discussed the limited role of sub-federal actors in promoting federal ratification. It also hypothesized that existing local and regional efforts on the Kyoto Protocol and the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") would serve as models for expanded sub-federal behavior.

The second piece, The Non-Legal Role of International Human Rights Law in Addressing Immigration, (3) contended that even unratified international human rights law influences non-binding regional processes, contributes to the development and dissemination of best practices, and helps produce and codify a human rights discourse. I looked outside of formal international law structures to identify ways in which human rights can move from international law into the state. This Article investigated regional consultative processes and Italy's immigration reforms as examples of state actors undertaking voluntary compliance with human rights norms outside of traditional pathways.

Most recently, Human Rights Impact Statements: An Immigration Case Study (4) proposed that domestic government actors, including states and localities, undertake human rights review of pending legislative and agency actions. I used the highly successful and much copied model of environmental impact statements as a starting point, but looked also at instances where government actors used such reviews to conduct more qualitative analyses. This Article addressed some design issues raised by such a proposal including: (1) which policies should be subject to assessment; (2) which governmental entities should conduct them; and (3) what consequences ought to flow from a human rights assessment or impact statement. Though I reached no conclusive recommendations, I noted the possibility and benefits of state and local experimentation in working through some of these design questions.

As a part of this larger project, this Article once again focuses on cities as a vital pathway for the movement from the international to the local. Like the prior works, this Article 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 Article seeks to explain why and how cities in particular can play an important role in bringing human rights home.

In the fifth and likely final paper, I anticipate concluding this discussion by looking closely at various methods to move human rights into the administrative state. That piece will compare a variety of human rights institutions that can be integrated at the federal, state, and local levels. I wish to look more deeply at the possibility for human rights impact statements, as well as determining the role for human rights commissions and ombudsmen. I plan on returning to some of the case studies introduced in earlier works, but this time for a sense of their administrative structure and design choices.

In so doing, this final work seeks to complete the cycle with the philosophical justifications for administrating the human rights state. The works in this project share the assumption that while we may all inherently possess human rights, the contours of those rights are also something articulated in and constituted by both international and domestic law. Thus, this Article will also return to the recurring theme of creating a human rights discourse. I intend to argue that advocates sometimes overlook the boundaries of those inherent human rights and elide the justifications needed for creating enforceable protection of them. I will suggest that administrating a human rights state can create the sort of reasoned articulation necessary to forge a consensus in favor of strong human rights protection. I wish to show how these various human rights institutions themselves can serve as justifying bodies for the content of human rights by serving as vital sites of specification.

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. (5) 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, and to local units such as cities, have all become active participants in the project of enshrining human rights in law. 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, it has focused mainly on human rights promotion rather than internal integration, and, thus, not created a strong counterbalance to the various political opponents.

I then link these political objections to the various structural hurdles through which treaties must pass. Such obstacles include the limited power of the executive's signature, the composition of the Senate, and various Senate procedures for treaty ratification. Though such obstacles are not insurmountable, I explain why they are particularly likely to pose challenges for human rights treaties.

Part II begins with a typology of various local human rights initiatives. Such categorization can help identify when constitutional, political, and economic limitations are most likely to be present. I then articulate some reasons why some cities might be more likely--and more effective--first movers. These include possible political homogeneity, avoidance of certain federal level objections, enhanced capacity to generate visible benefits for their constituents, and structural advantages in passing ordinances. 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 often provide basic social services and possess a large bureaucracy, subjecting city bureaucracies to human rights creates gains for its residents, regardless of what actions states and the federal government decide to undertake. 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, concludes by identifying some structural limitations on cities that do not exist at the federal level and by cautioning those who believe cities to be a likely motivator of federal behavior. (6) 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 in order to have a realistic sense of cities' true potential in...