"By Some Other Means": Considering the Executive Role in Fostering Subnational Human Rights Compliance
The broad realization of human rights domestically requires strong partnership among all levels of government. Indeed, international and domestic law support an important role for state and local governments in implementing the United States’ human rights treaty commitments, with the federal government retaining ultimate responsibility. While the federal government’s responsibility is clear, its options for fostering and facilitating subnational compliance have not been fully explicated. United States’ human rights treaty ratification practices and recent Supreme Court jurisprudence primarily constrain the Executive’s ability to compel state and local compliance without congressional authorization. In the absence of such congressional action, the Executive nevertheless is empowered to, and has a vital interest in, engaging other, non-coercive measures to bring subnational governments, and thus the United States, into human rights treaty compliance. An exploration of the doctrinal, functional, pragmatic and normative concerns, interests and needs particular to federalism and domestic human rights implementation, and an examination of relevant instances of cooperative federalism in other contexts, reveals several core non-coercive federal Executive functions. Specifically, by setting standards, collecting and disseminating information, and incentivizing compliance, the Executive, in cooperation with Congress, can maximize state and local human rights treaty compliance and positively impact the United States’ ability to fulfill its human rights commitments.
Risa E. Kaufman,
"By Some Other Means": Considering the Executive Role in Fostering Subnational Human Rights Compliance,
Cardozo L. Rev.
Available at: https://scholarship.law.columbia.edu/human_rights_institute/55