Safeguarding Democracy: US should establish a national human rights institution

Last week, the U.S. co-hosted the second Summit for Democracy, together with Costa Rica, the Netherlands, the Republic of Korea and Zimbabwe.

In the forum’s Declaration of the Summit for Democracy, the U.S. and more than 70 participating countries pledged to “protect, respect and fulfill” the human rights of all people and to “strengthen efforts that focus on people and deliver fair, inclusive, relevant and timely justice that upholds and respects human rights.”

Since the first summit, convened by the Biden administration in 2021, the U.S. and many other countries have made impressive commitments to protect and promote democracy and human rights.

But a glaring omission from the U.S. is its refusal to create a national human rights institution (NHRI) to safeguard human rights and democracy at home.

This failure by Congress and successive administrations to take any substantive steps toward the creation of an NHRI is no oversight.

According to the Global Alliance of National Human Rights Institutions, at least 120 nations around the world have created an accredited NHRI. They include U.S. allies such as Canada, France, Germany, Great Britain and Ukraine, and all of the U.S.’ Summit for Democracy co-hosts. Over the years, numerous U.N. treaty institutions and panels of experts, as well as fellow U.N. member nations, have urged the U.S. to follow suit.

Although the Biden administration has robustly participated in U.N. human rights institutions – and even hopes the U.S. will lead the U.N. Human Rights Council – the lack of an NHRI is just one facet of a broad refusal to take seriously its own obligations under international human rights treaties, even as it promotes human rights abroad and monitors the human rights records of many other countries.

No force of law

While the U.S. has ratified a few important U.N. human rights treaties, including the International Covenant on Civil and Political Rights, the International Convention on the Elimination of Racial Discrimination (ICERD) and the Convention Against Torture, it has maintained that those treaties are not “self-executing.”

In other words, the treaties don’t have the force of law for U.S. residents, who can’t enforce violations of their declared rights in court because Congress has not passed legislation to incorporate them into domestic law.

In the absence of such congressional action, these U.S. obligations can impact the human rights of people living in the U.S. only if the president implements them through domestic policy.

Despite Biden’s frequently stated commitment to human rights, his administration has missed obvious opportunities to incorporate the treaty requirements into the work of federal government agencies. Most notably, the administration failed to include, or even refer to, the ICERD in two executive orders on Advancing Racial Equity. The president should take such steps to make human rights implementation a reality. A functioning NHRI would have helped to ensure that happened.

SPLC advocacy

Over the past two years, the SPLC has advocated at the U.N. and directly with the Biden administration for genuine implementation of these human rights treaty obligations, which would bring real progress on a range of issues that include voting rights, mass incarceration, the growing threat of hate and extremism and entrenched poverty. For example:

• At the U.N. Committee on the Elimination of Racial Discrimination (CERD) review of U.S. compliance with that treaty, we provided testimony from people whose voting rights were affected because of previous felony convictions and who were subjected to physical and psychological suffering through forced labor and long-term solitary confinement while incarcerated. Our reports to the CERD also addressed appalling immigrant detention practices and conditions, education and health care disparities, and important gaps in government efforts to combat hate and extremism.

• Before the Working Group of Experts on People of African Descent, we presented testimony on behalf of a coalition of Black farmers who are fighting for debt relief and fair treatment following decades of discriminatory government practices that have resulted in a more than 90% loss of Black-owned farm property in the U.S. We also reported on the terrible toll of discriminatory school discipline and policing along with racially disparate public school funding and the devastating impacts of mass incarceration on children and families.

• At the inaugural session of the new U.N. Permanent Forum on People of African Descent, we decried the United States’ failure to hold itself to the same human rights standards it seeks to promote to the rest of the world. In preparation for the forum’s upcoming session, we reported on neo-colonial practices that majority-white legislatures use as they seek to subjugate majority-Black and Black-led cities like Jackson, Mississippi.

Creating an NHRI

Our advocacy has contributed to findings and recommendations by U.N. bodies that provide us with tools for advancing our concerns back home.

At each step, we have also advocated for the establishment of an NHRI. An NHRI could provide training to federal, state and local entities about the requirements of human rights treaties and how to work toward meeting them; serve as a hub for cooperation among agencies and officials from different areas of government; assist with the development of plans for implementation; help to address violations; and collect and analyze data on the efforts and progress. Without any mechanism for coordinating, monitoring and evaluating implementation of our treaty obligations, meaningful progress is unlikely to happen. We can’t improve what we don’t measure.

In the months leading up to the 2023 Summit for Democracy, the SPLC and other civil and human rights organizations and advocates, as well as several members of Congress, urged the Biden administration to include progress toward the creation of an NHRI in its summit commitments by establishing a commission to examine alternatives and make recommendations for how such an institution would be structured. It’s not a big lift. A recent report from the University of California at Irvine Law School’s International Justice Clinic and another upcoming study – for which we have partnered with a team at the Harvard Kennedy School of Public Policy – will provide an excellent jumpstart.

The U.S. has dragged its feet for far too long on living up to the commitments it made by ratifying these human rights treaties decades ago. It’s time for the Biden administration to put its best foot forward and set our country on the path to true fulfillment of our obligations.

Photo at top: President Joe Biden delivers remarks while hosting the Summit for Democracy virtual plenary session with Secretary of State Antony Blinken on March 29, 2023, in Washington, D.C. Although the Biden administration has robustly participated in U.N. human rights institutions, the U.S. still lacks a national human rights institution to safeguard human rights and democracy at home. (Credit: Chip Somodevilla/Getty Images)