The Promise and Limits of Local Human Rights Internationalism

By Wexler, Lesley | Fordham Urban Law Journal, April 2010 | Go to article overview

The Promise and Limits of Local Human Rights Internationalism


Wexler, Lesley, Fordham Urban Law Journal


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. …

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