Institutionalizing human rights in the United States: Advocacy for a national human rights institution

Abstract

National Human Rights Institutions (NHRIs) have been part of the infrastructure of international law since 1946, two years before the Universal Declaration of Human Rights was completed. Globally, more than 120 nations have established independent NHRIs. Two-thirds of these have been accredited by the Global Association of National Human Rights Institutions (GANHRI) after passing a rigorous review to assess their compliance with the Paris Principles, a set of minimum standards for NHRIs. The United States does not have an NHRI and the federal government has resisted calls from both domestic NGOs and the international community to establish such an institution. Domestic advocates nevertheless continue to pursue creative approaches to promote human rights monitoring and implementation in the United States. U.S. civil society submissions to treaty bodies regularly draw attention to the need for a U.S. NHRI. On the domestic stage, advocates likewise urge the federal government to take a greater role in human rights monitoring, implementation, and coordination. However, as a global power and a key actor in the UN system, the U.S. government experiences few consequences for failing to establish an NHRI. In sum, the absence of a U.S. NHRI is a challenge not only for domestic advocates, but for the international system as well.

1. Introduction

America’s ambivalence about human rights runs deep. It is apparent in the United States’ failure to ratify such widely accepted human rights treaties as the UN Convention on the Rights of the Child (CRC) and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). And it is manifested in the federal government’s failure to establish an effective domestic human rights infrastructure—specifically, its failure to establish a National Human Rights Institution (NHRI).¹

In other contexts, the U.S. government accepts the legitimacy of human rights monitoring. For example, the federal government maintains several bodies that look outward at the human rights abuses of other countries, and even occasionally provide searching assessments of U.S. foreign policy. The Congressional Helsinki Commission (established in 1975), the Tom Lantos Human Rights Commission of the U.S. House of Representatives (established in 1983), and the U.S. Senate’s Human Rights Caucus (established in 2014) all hold periodic briefings or hearings to shine a light on human rights abuses around the world. Likewise, the U.S. State Department has, since 1977, published annual “Country Reports on Human Rights Practices” that review the human rights compliance of almost 200 other countries (U.S. Department of State 2022). However, there is no standing body within the United States that examines domestic policies and activities through a human rights lens.

U.S. human rights advocates feel the absence of such a domestic institution. Decades of domestic human rights activism, particularly around issues of racial justice, have drawn the international community’s attention to ongoing human rights concerns in the U.S. Yet there is no permanent mechanism within the U.S. to ensure that the government responds to human rights issues raised by the international community in the Universal Periodic Review (UPR), treaty reviews, or United Nations expert reports. Further, though the United States has many institutional mechanisms intended to protect civil rights, there is no independent domestic institution responsible for public education and pro-active implementation of international human rights standards in the United States.

Without such a national human rights mechanism, U.S. human rights activists and advocates, affected individuals and groups, and even local governments, often seek to vindicate human rights through direct engagement with international bodies. While such engagement can be generative for both the activists and the international experts, a system where government accountability relies on sporadic opportunities for direct engagement between U.S. civil society representatives and human rights experts in Geneva, Switzerland or short-term Special Procedures visits to the U.S., is both ineffective and unsustainable.

Because the current processes are inadequate to the task of monitoring and implementing U.S. human rights obligations, there are mounting calls on the U.S. government—from both the international community and domestic actors—to establish an NHRI. Increasing pressure comes from several sources. Civil society actors within the U.S. are mounting a broad, coordinated campaign, seeking greater government accountability for meeting human rights obligations (Borden, 2023). Beyond advocacy, the international ambitions of subnational governments within the U.S. create an incentive for the federal government to maintain its national-level coordination of foreign affairs by consolidating human rights work through a national institution—a development that many subnational governments would welcome. Politics also matters, and foreign governments’ perceptions of weakening democratic safeguards in the U.S. increase the freighted urgency of external calls for a U.S. national human rights body. As these internal and external pressures increase and compound, perhaps they will create a chink in American resistance to the establishment of an NHRI.

Following this background set out in Part I, the remainder of this article delves into the history, context, and impacts of advocacy for a U.S. NHRI. Part II reviews the history and growth of NHRIs worldwide, situating the absence of an American NHRI within the global context of such institutions. Part III describes growing international and domestic pressure on the U.S. government to establish an NHRI. Drawing on the history and global context of these efforts, Part IV suggests advocacy approaches that could be effective in the U.S. A brief Conclusion follows.

2. The history and growth of NHRIs

The concept of an NHRI is not new. In fact, NHRIs have been recognized as part of the international human rights infrastructure since 1946, two years before the Universal Declaration of Human Rights was completed (GANHRI, 2019). After a slow introduction, the worldwide trend toward establishing NHRIs gained momentum in the 1990s (Linos & Pegram, 2016; Kjærum, 2003). In 1991, representatives of twenty-five NHRIs and interested observers came together in Paris to discuss approaches to establishing and strengthening NHRIs (De Beco & Murray, 2014). The resulting document set out “Principles relating to the status and functioning of national institutions for the protection and promotion of human rights”—known familiarly as the “Paris Principles.” These are basic standards for NHRIs, with the “key pillars” being “pluralism, independence and effectiveness” (GANHRI, 2019).

The UN General Assembly’s 1993 endorsement of these principles ushered in a new era of NHRI significance and expansion worldwide. Independent NHRIs are established in almost 120 nations (Linos & Pegram, 2016), and they have been incorporated as national monitoring bodies in the UN Optional Protocol to the Convention against Torture and the Convention on the Rights of Persons with Disabilities (Burdekin, 2011). The UN’s endorsement of NHRIs and the Paris Principles was reaffirmed in a UN General Assembly resolution in 2019.

Though NHRIs are created under domestic law, they are monitored through the UN-affiliated Global Association of National Human Rights Institutions (GANHRI), which exercises a rigorous review and accreditation process to assess each NHRI’s adherence to the Paris Principles (Langtry & Roberts Lyer, 2021). There is no single form for an NHRI. According to GANHRI, accredited NHRIs may be “human rights commissions, ombuds institutions, hybrid institutions, consultative and advisory bodies, research institutes and centres, public defenders, or parliamentary advocates” (GANHRI, 2019).

Whatever their form, accredited NHRIs must comply with the Paris Principles and be established through legislation or a Constitution as opposed to executive action (Burdekin, 2011). NHRI accreditation depends upon meeting specific standards in each of the categories outlined in the Paris Principles. Upon application and review, GANHRI designates an NHRI as either A-status or B-status. NHRIs with A-status are full members of GANHRI. They can vote and hold governance positions in GANHRI, and can participate at the UN Human Rights Council, its subsidiary bodies and before some General Assembly bodies. NHRIs that are awarded B-status can participate in GANHRI meetings, but cannot vote or hold office in the organization, and they have no official standing to participate before UN bodies (GANHRI, 2019).

Several significant research studies show that NHRIs tend to have a positive human rights impact in their home nations (Jensen, 2018). For example, Ryan Welch’s analysis of 153 countries over the period from 1981 through 2007, showed that when nations ratify the Convention Against Torture and also have an NHRI, instances of torture decrease (Welch, 2015). Looking at 16 human rights ombuds (designated NHRIs) in Latin America from 1982 to 2011, Erika Moreno concluded that these institutions had statistically significant, positive effects on “access to education, health and housing” (Moreno, 2016). NHRIs can be particularly important in nations threated by autocracy, dealing with post-conflict challenges, or countries where governments engage in serious human rights violations such as torture, but they can also play an important role in nations where human rights abuses may be less visible, such as the issue of food insecurity in Scotland. Several scholars have noted that NHRIs function not only as agents promoting human rights, but also critical mechanisms for institutionalizing human rights within a larger government context (Jensen, 2018).

The standards that NHRIs must meet in order to receive and maintain GANHRI accreditation ensure a measure of continuity, independence, and effectiveness among NHRIs worldwide. Further, Kathryn Linos and Tom Pegram have suggested that the peer-to-peer nature of the GANHRI review itself contributes to strengthening these institutions in their domestic settings and spreading a transnational culture of human rights (Linos & Pegram, 2016). The GANHRI accreditation process is principally an exercise of soft law, but the process has teeth, and GANHRI has stripped accreditation from NHRIs that fail to meet the standards of the Paris Principles (Linos & Pegram, 2016; Hafner-Burton, 2013).

Countries differ in their reasons for establishing NHRIs. As set out in a report published by the Brookings Institution on the Middle East region’s experiences with NHRIs, reasons may include “(1) responding to ethnic, religious, and other forms of conflict; (2) combatting systematic human rights violations, such as extrajudicial killings and forced disappearances; (3) protecting and promoting human rights; (4) signaling to external partners the government’s commitment to human rights; and (5) helping the government comply with its international human rights responsibilities” (Kayaoglu, 2021). Nations establishing NHRIs may also be motivated by less benign goals, such as silencing critics or co-opting human rights language in order to launder questionable government policies (Kayaoglu, 2021; Hong, 2023).

Charting the rise of NHRIs since the 1990s, Katherine Linos and Tom Pegram demonstrated that the General Assembly’s endorsement of the Paris Principles in 1993 coincided with an accelerated growth and expansion of NHRIs in every region, including the Americas (Linos & Pegram, 2016). As the number and reach of NHRIs continues to increase, nations may hope to gain reputational benefits by establishing such domestic institutions (Lohaus & Stapel, 2022), or at least to avoid the negative reputational impacts of not having an NHRI.

A desire for visibility in international settings may motivate countries to establish an NHRI. Within UN institutions, nations without NHRIs may be at a disadvantage, with a diminished voice in important international discussions (Linos & Pegram, 2017). NHRIs’ work on the UN Sustainable Development Goals (SDGs) is illustrative of this; nations without NHRIs are simply not at the table when NHRIs around the world collaborate internationally on issues relating to sustainability and development (European Network of National Human Rights Institutions [ENNHRI], 2016). Lacking an NHRI, the U.S. is represented at these meetings by an empty chair.

Interestingly, the Brookings report on NHRIs in the MENA region concluded that external pressures to establish an NHRI had the greatest influence on those governments’ decision to move ahead with creating such institutions (Kayaoglu, 2021). The critical role of external actors in these decisions was confirmed in Dongwook Kim’s study exploring the reasons that developing countries establish an NHRI; in that analysis, the author concluded the international NGOs (INGOs) played the most consequential role in the “shaming” pressures that led nations to establish an NHRI (Kim, 2013).

Beyond the momentum created by criticism from their international peers and INGOs, some nations that establish NHRIs are also responding to internal pressure. In the MENA region, domestic activism was identified as an important source of pressure influencing the creation of NHRIs there (Kayaoglu, 2021). A combination of external and internal pressure may also be involved: civil society activists may strategically coordinate with their global counterparts, international institutions, and other international actors to move the needle, a phenomenon discussed in the introduction to this volume as “human rights globalization.” In the case of the U.S., efforts to advance “human rights globalization” are apparent in the shadow reports and testimony submitted to UN bodies by domestic advocates calling for a U.S. NHRI (Campaign for an NHRI in the USA, 2024).

Both external and internal factors have led the majority of nations worldwide to establish NHRIs that meet GANHRI standards for either A-level or B-level accreditation. Are the same factors at work in the U.S. case? If so, why has the U.S. resisted establishing an NHRI, remaining in the small minority of nations such as China, Russia, Saudi Arabia, Angola, Brazil, and Italy, that have failed to establish such an institution? These questions are explored in the sections that follow.

3. American ambivalence and NHRIs

3.1. External pressure

Many case studies cite external pressure as a major factor in convincing governments to initially establish their NHRIs (Kayaoglu, 2021; Cardenas, 2014). Sometimes establishing an NHRI is a condition imposed as part of a post-conflict government restructuring, e.g., in Cote d’Ivoire (Cardenas, 2014). On other occasions, international pressure may arise in response to government corruption in developing economies, as donors seek to ensure that their investments are not skimmed off and squandered, e.g., in Indonesia and India (Cardenas, 2014). Countries with a checkered human rights past, such as Germany, may be especially sensitive to diplomatic pressure to establish an NHRI and keen to send a message to the world community about the nation’s vigilance concerning human rights principles (Cardenas, 2014).

The U.S. has been subjected to similar external pressure to establish an NHRI—from other nations, international institutions, and INGOs, through the UPR, treaty reviews, and reports from UN Special Procedures. Yet unlike peer nations—for example, the U.K., Canada, the Netherlands, Australia, New Zealand—the U.S. federal government has resisted calls from the international community to establish an NHRI (Kaufman, 2012).

The external pressure on the U.S. to establish an NHRI has increased over time. Though the General Assembly endorsed the idea of NHRIs in 1993, the expectation that nations would adopt such mechanisms was not immediately prioritized in international fora. For example, when the United States’ first periodic report under the ICCPR was filed in 1994, neither the U.S. report nor the Human Rights Committee’s Concluding Observations addressed the issue of an NHRI. More than ten years later, the Concluding Observations following the United States’ second and third periodic reports were likewise silent on the issue, though the UN body did ask the U.S. to provide information on “mechanisms adopted to ensure proper follow-up of the Committee’s concluding observations” (UN Human Rights Committee, 2006).

In these early years, other treaty bodies also addressed the issue of an NHRI only indirectly. For example, in 2006, the Committee Against Torture was silent on the issue of an NHRI, while at the same time suggesting that the U.S. adopt stronger human rights oversight mechanisms (UN Committee Against Torture, 2006).

More recently, however, the absence of an NHRI has been explicitly and consistently raised when the U.S. is being reviewed for its compliance with human rights treaty obligations, with treaty bodies strengthening language across reports. The CERD Committee addressed the issue in its 2008 review of the U.S., recommending the establishment of an independent human rights institution (UN Committee, 2008). In 2013 and 2017, the Children’s Rights Committee, reviewing U.S. performance under the Optional Protocol to the Convention on the Rights of Children in Armed Conflict, repeatedly expressed concern about the lack of an NHRI (UN Committee on the Rights of the Child, 2013, 2017). Likewise, in its 2014 Concluding Observations, the CERD Committee expressed regret that the U.S. had made no progress in response to the committee’s prior recommendations to establish an NHRI (UN Committee, 2014). Eight years later, with no action from the U.S., the Committee reiterated both its “regret” at the “lack of progress,” and its continued concern that the U.S. take action on its recommendation to establish an NHRI consistent with the Paris Principles (UN Committee, 2022).

UN Special Procedures reporting on human rights in the U.S. have also urged creation of an NHRI. For example, the UN Independent Expert on Sexual Orientation and Gender Identity, conducted an official mission to the U.S. in 2021. At the conclusion of his visit, the Independent Expert alluded to the rise in hate crimes and incidents of police violence, and opined that these events should lead the U.S. to “[reconsider] the call, previously made by some of my colleagues, for the creation of a National Human Rights Institution for oversight of international treaty obligations ….” (UN Independent Expert on SOGI, 2021). In August 2022, the UN Special Rapporteur on Minority Issues, on an official mission to the U.S., likewise called on the U.S. government to “create a national human rights institution” (UN Special Rapporteur, 2022). The call was repeated in 2023, when the UN Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement recommended that the U.S. “[e]stablish a national human rights institution in accordance with the Paris Principles …” (UN Int’l Expert Mechanism, 2023).

The issue of an NHRI has also been raised repeatedly by peer nations in the Universal Periodic Review (UPR) process, beginning with the United States’ first Universal Periodic Review in 2010-2011. Civil society groups such as the U.S. Human Rights Network and Amnesty International submitted inputs in advance of the review highlighting the need for a U.S. NHRI. During the review that followed, at least 12 of the participating governments – including allies of the U.S. such as the United Kingdom, Germany, and Norway – called for progress on a U.S. NHRI.²

During the 2015 UPR review, the attention to this issue increased, with dozens of countries taking up the cause, using diplomatic language reflecting varying levels of concern. Senegal, Congo, Venezuela, Poland, Sierra Leone, Morocco, Hungary, and Paraguay called on the U.S. to “establish” an NHRI; Philippines asked that the U.S. “take steps” toward establishing an NHRI; and India, Nepal, Sudan, Panama, Kenya, Ukraine, Democratic Republic of Congo, Kazakhstan, the Republic of Korea, and Indonesia, urged the U.S. to “consider establishing” an NHRI in accordance with the Paris Principles (UN Working Group, 2015). Norway and Germany submitted advance questions for the U.S. about an NHRI, joined by Switzerland and Azerbaijan (UN Working Group, 2015).

Five years later, in the UPR conducted in 2020, the Philippines, Zambia, and Qatar, called on the U.S. to “take steps” to establish an NHRI, while others such as Malaysia, India, and Nepal repeated their recommendations that the U.S. “consider” an NHRI. Somalia and Lithuania reiterated their more aggressive calls on the U.S. to “establish” an NHRI (UN Working Group, 2020).

Throughout this period, the U.S. made no commitment to take action. Offering an initial reaction during the UPR process in 2010, Asst. Secretary of State Harold Koh said that the idea of an NHRI was “currently under discussion in our country” (Koh, 2010). Yet the U.S. government’s formal response filed in 2011 neither accepted nor rejected these recommendations, instead stating that “we cannot now commit to a particular plan” (U.S. Department of State, 2011).

In 2015, the U.S. responded to UN member nations’ input during the UPR by accepting the calls to “consider” creating an NHRI, but it merely “noted” the recommendations to take concrete action. In its formal written response, the U.S. reiterated its faith in the effectiveness of existing “institutions to monitor human rights,” but left the door open for further action, stating that “we are considering whether this network of protection is in need of improvement” (U.S. Department of State, 2015).

With the 2020 UPR, conducted during the Trump Administration, the U.S. government for the first time flatly rejected recommendations to establish an NHRI, stating that “‘planning’ is no substitute for remedial action” (United States, 2020). However, by the time the UPR process concluded in 2021, President Biden had taken office, and the U.S. reverted to its prior practice of accepting recommendations to “consider” an NHRI. The U.S. nevertheless used strong language to reject any concrete action steps, definitively stating that “there are no current plans to establish a single national human rights institution” (UN Report, 2021).

Still, U.S. government representatives continue to take the NHRI proposal “under advisement” before international bodies. In response to the U.S. inaction, the UN Human Rights Committee in 2023 adopted the strongest language to date, stating that the U.S. should establish an NHRI as a “matter of priority” (UN Human Rights Committee, 2023).

Given the years of statis on this issue, it seems fair to conclude that the U.S. government’s position of resisting an NHRI reflects a posture of American resistance that has been largely impervious to pressure from peer nations and UN human rights experts (Tyrrell, 2021). Yet while rebuffing calls for a U.S. NHRI, the U.S. government recognizes the importance of NHRIs in other nations. For example, in its annual State Department Country Reports, the U.S. government regularly identifies the existence of an NHRI as relevant to the U.S. assessment of the particular nations’ human rights record. In short, the U.S. critiques the NHRIs of other nations while effectively refusing to establish a similar institution in the U.S. (Borden, 2023).

3.2. Pressure from below and exploring alternatives to a NHRI

In addition to peer nations and UN experts, U.S. civil society has pressured the U.S. government to establish an NHRI over more than a decade. Some of that pressure has come in the form of submissions to the various UN bodies that review U.S. government human rights compliance, as described above. When taken up by UN experts, such submissions require that U.S. representatives go “on the record” with a response. Submissions by subnational government actors, such as the International Association of Official Human Rights Agencies (IAOHRA), made up of state and local human rights agencies, are particularly compelling, since they speak to the value of federal coordination when subnational governments take up the task of human rights implementation on the ground (IAOHRA & PHRGE, 2022).

Beyond UN submissions, U.S. civil society activists have focused on the domestic front to advance the cause. On the heels of President Obama’s election, over 50 civil rights and human rights organizations came together to form the Human Rights at Home Campaign (HuRaH) (Dakwar, 2010). Among other things, the group called for revitalization of the federal InterAgency Working Group on Human Rights Treaties, an internal coordinating body, established by Executive Order under the Clinton administration but de-activated once that Administration ended (Executive Order, 1998). In addition, members of HuRaH Campaign, including the Columbia Law School Human Rights Institute, the U.S. Human Rights Network, and the Leadership Conference on Civil and Human Rights, explored a number of avenues for establishing an NHRI.

The HuRaH Campaign’s deliberate planning process toward its NHRI goal attracted support from funders. The process included a 2010 convening at the Rockefeller Center at Bellagio, Italy, which resulted in a comprehensive blueprint for human rights implementation in the U.S. though a National Human Rights Institution, titled “The Road to Rights: Establishing a Domestic Human Rights Institution in the United States.” A key strategy outlined in the report is expanding the scope of the U.S. Commission on Civil Rights (USCCR) to encompass a human rights mission, with the goal that it would serve as the U.S. NHRI. Notably, the Leadership Conference on Civil Rights, founded in 1950 by civil rights leader A. Philip Randolph, modeled this very shift in nomenclature and scope when it adopted a new name, Leadership Conference on Civil and Human Rights, in 2010 (Kamuf Ward, 2012).

The Road to Rights report identified political and practical hurdles to extending the reach of the USCCR but deemed that route to be the most expedient option for creating a U.S. NHRI. But more than a decade after the report’s publication, resistance to the expansion of the Civil Rights Commission’s mission has proved to be too substantial to overcome. In 2014, the Republican Party took control of both houses of Congress, rendering any plan to expand human rights implementation through legislation (as would be required to alter the USCCR’s mission) effectively impossible. In addition, opposition from some members of the Civil Rights Commission was a substantial obstacle (Groves, 2013). With human rights engagement increasingly viewed as a partisan issue, opponents of a U.S. NHRI weighed in to vocally oppose any plan to create an NHRI (Groves, 2013).

When the Trump administration came into office in 2016 with a promise to withdraw the U.S. from many of its international partnerships and affiliations, the domestic human rights landscape changed dramatically. Instead of pushing for expanded human rights implementation, U.S. advocates pivoted to preserving the status quo. At the same time, many activists turned greater attention to shoring up efforts to incorporate human rights into local policies.

One such creative approach involved working closely with self-identified human rights cities to implement human rights norms (Smith, 2018). Though the human rights city model originated decades earlier (Oomen et al., 2016), it gained new urgency in the U.S. context as the federal government set about severing ties with human rights bodies. In response to the federal stance, the U.S. Human Rights Cities Alliance encouraged local government actors and advocates to draw on human rights models in developing approaches to areas like housing and racial justice. Domestic human rights advocates also increasingly engaged with the hundreds of subnational state, county, and local human rights commissions spread across the U.S. These subnational initiatives provide further potential for achieving some of the goals of an NHRI, albeit in a fragmented way, while simultaneously putting pressure on the federal government to take a greater role in human rights monitoring, implementation, and coordination (Wolman, 2014). Similarly, advocates used the State Advisory Committees of the USCCR to raise the profile of local human rights concerns such as housing and water access (New York State Advisory Committee, 2022; Massachusetts State Advisory Committee, 2021).

With the arrival of the Biden Administration, supporters of a U.S. NHRI renewed their efforts and continued to find ways to press their case. For example, in December 2022, students at U.C. Irvine Law School International Justice Clinic conducted interviews with NHRI experts and practitioners worldwide to inform their publication “Establishing a National Human Rights Institution in the United States” (UC Irvine School of Law, 2022). Building on that report, advocacy groups sent a letter to Ambassador Susan Rice, Director of the White House Domestic Policy Counsel, calling for a commission to study the creation of a NHRI (Coalition Letter, 2022).

In sum, for at least two decades, U.S. activists have pursued a strategy of pressuring the U.S. government to establish an NHRI or, failing that, a commission to study the issue. Strategies have included engagement with UN processes as well as domestic advocacy. Yet even under presidential administrations that profess a commitment to human rights, this pressure has thus far been insufficient to move the needle on a U.S. NHRI.

4. Analysis

4.1. Explaining persistent U.S. government resistance to an NHRI

With the arrival of the more human rights-friendly Biden Administration in 2021, U.S. advocates renewed efforts to secure the federal government’s commitment to take concrete action toward establishing an NHRI. Yet these efforts have been met with the same non-committal responses as in the past, despite developments worldwide that demand a greater U.S. commitment to human rights at home. Indeed, U.S.’s international allies’ concerns about the stability of U.S. democracy and the U.S. role in the world order after the January 6 insurrection might be partially assuaged by establishment of an NHRI (Long & Miller, 2022). As the Carter Center recognized, “NHRIs play a key role in promoting democratic governance …” (Carter Center 2024).

Urgent international concerns about racial violence and police brutality in the U.S. might be also assuaged, in part, by establishment of an effective NHRI. Beyond sending a message to the international community, a U.S. NHRI could play an important role in addressing the human rights violations that can trigger domestic unrest and violence (Jensen, 2018).

Yet the U.S. government remains noncommittal.

There are several possible explanations. First, as a key actor in the UN system and a military and economic superpower on the world stage, the U.S. government experiences few consequences for failing to establish an NHRI. The statements made by diplomats participating in the UPR and the comments on U.S. practices made by UN experts, are not followed by any tangible consequences for the U.S.’s failure to establish an NHRI. For some nations, such as Indonesia and Mongolia, peer shaming on the international stage, combined with threats of economic sanctions from donor countries, were sufficient to trigger action (Cardenas, 2014). For the U.S., shaming alone is plainly insufficient, and there are no meaningful sanctions for U.S. inaction.

Second, the domestic advocacy supporting an NHRI, while vigorous and creative, has not been adequate to overcome any Administration’s risk-averse approach to governing. It is no accident that existing U.S. government human rights institutions focus almost exclusively on foreign activities. Despite decades of work by U.S. advocates, human rights are often viewed by the American public solely as a basis for evaluating other nations. For example, following the critical report on the U.S. issued by the Special Rapporteur on Poverty in 2018, the U.S. Ambassador to the UN, Nikki Haley, argued that “it is patently ridiculous for the United Nations to examine poverty in America,” and suggested that human rights scrutiny should be reserved for countries such as Burundi and the Democratic Republic of Congo (Pilkington, 2018). Tellingly, a 2019 Harris poll indicated that almost half of Americans believe that criticizing the U.S. is unpatriotic (Bonn, 2019). No wonder that political leaders have not been prepared to institutionalize a U.S. human rights mechanism such as an NHRI.

Further, to the extent that human rights frameworks are identified with political progressives, emphasizing the framework reinforces political polarization in an era where close elections are decided by tiny percentages. Polling in 2018 indicated that Republicans were much more likely to feel that human rights and civil rights were already well-respected in the U.S. and did not need reinforcement (Ron, 2020). Political divides have only increased in the intervening years. Advocates promoting creation of a U.S. NHRI are unlikely to succeed until federal government officials are convinced that an NHRI is good domestic politics as well as good international politics.

In sum, the three principal factors that led to creation of NHRIs in other nations—international peer pressure, INGO advocacy, and domestic activism—have not yet been sufficient to yield the same result in the U.S. However, as discussed below, there are several emerging factors that might yet increase the cost of the U.S.’s inaction and spur a response from the U.S. government.

4.2. Possible paths toward a U.S. NHRI

While there has been little positive movement toward a U.S. NHRI, there are several international and domestic factors that might trigger a new perspective by the U.S. government—perhaps leading to the launch of a Presidential study commission, if not a full-fledged NHRI.

First, the growing international engagement of subnational governments might well stir the pot, convincing the U.S. federal government that greater national leadership and coordination is needed in order to negotiate the nation’s foreign relationships. U.S. cities, in particular, have been aggressive about claiming a role in international human rights fora—by submitting their own human rights reports directly to UN bodies, and by clamoring for more formal roles in UN institutions (Haddad & Cui, 2021). Among other examples, several U.S. cities have engaged directly with the UN by reporting on and implementing the SDGs, a space where the U.S. federal government has been notably absent (Davis, 2023). And activists within U.S. cities have been effective in re-orienting local debates to include a focus on human rights implementation (Smith, 2018). A prominent example is the Cities for CEDAW campaign, which led some U.S. municipal governments to implement human rights policies such as gender budgeting (Ezer 2022). While the UN and GANHRI are still primarily focused on the role of nations in human rights implementation, that orientation is shifting, and there is increasing interest in bringing subnational governments into international dialogues around human rights (Geneva Cities Hub, 2023).

Without an NHRI to coordinate these subnational efforts, the U.S. federal government may have greater difficulty interfacing with international bodies as an authoritative source on U.S. policy. At that point, the federal government might recognize that an NHRI could strengthen U.S. government’s position internationally by providing a cohesion otherwise lacking when many subnational governments speak out in international fora. When peer shaming has fallen short, and sustained domestic activism is insufficient, perhaps the federal government’s interest in curbing subnational governments’ ad hoc participation in international fora can change the political dynamics.

Second, the phenomenon of human rights globalization might be a vehicle for coordinated, and heightened, pressure from external and internal sources, including external entities outside of the United Nations. There are many possibilities. For example, the European Union (EU) issues an annual “Report on Human Rights and Democracy in the World,” which includes an analysis of the United States (EEAS, 2022). Prepared by the EEAS, the European Union’s diplomatic service, the 2021 report identified incremental progress on eliminating the death penalty in the U.S. and praised the Biden Administration’s re-engagement with international bodies. However, it nowhere mentioned the role that an NHRI might play in ensuring further progress on both of these issues. Advocacy by U.S activists, and transnational human rights actors that support establishment of a U.S. NHRI, might engage with the EEAS and similar international actors to establish new sources of pressure on the U.S. government. The international Organization for Economic Cooperation and Development, of which the U.S. is a member, is also well-situated to increase pressure on the U.S. to establish an NHRI as a vehicle for assuring government integrity.

Here, too, subnational governments that support the need for an NHRI might be part of the mix. For instance, they might raise this issue in the context of the UPR process if it expands to include cities, as proposed by some (Geneva Cities Hub, 2023). City-led transnational bodies such as the global Human Rights Cities Network or the United Cities and Local Governments might also add their voices to the powerful chorus urging U.S. action.

Finally, in the coming years, shifts in geopolitical power may clarify the diplomatic and security risks to the U.S. of failing to establish an NHRI. In foregoing such a mechanism, the U.S. finds itself in the company of mostly autocratic nations. As China gains global economic power, American ambivalence may no longer be sustainable, and certainly not wise, as the U.S. seeks to shore up strategic alliances in developing nations of Africa and Asia (Cleveland, 2021). Many of these nations have established NHRIs and have been vocal critics of the U.S. failure to adopt such a measure. As global power dynamics shift over time, creation of a U.S. NHRI would be a powerful signal to the world of the U.S. commitment to human rights and democracy.

5. Conclusion

The paths that have led to establishment of NHRIs around the world—pressure from peer nations, advocacy from INGOs, and activism of domestic groups—have yielded little progress on the issue in the U.S. Human rights advocates and their allies must develop novel approaches to shift the terrain in the U.S. The rise of cities, the globalization of human rights, and larger geopolitical forces may set the stage for some movement along the road to an NHRI. Advocates for a U.S. NHRI should be poised to take advantage of these developments.

Acknowledgments

The author thanks Heather DuCharme, NUSL ‘24, and Morgan Metsch, NUSL ’25 for excellent research assistance, and Jackie Smith and Michael Goodhart for helpful comments on an earlier draft. Steven Jensen, Sébastien Lorion, Jason Naum, and Andreas Ljungholm provided helpful resources and international perspectives. Any errors are the responsibility of the author.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Martha F. Davis

Martha F. Davis is University Distinguished Professor at Northeastern University School of Law, Affiliated Faculty of the Raoul Wallenberg Institute of Lund University, and a 2022–2024 Fellow of the Carr Center for Human Rights Policy at Harvard University’s Kennedy School of Government.

Notes

1 For purposes of this paper, a National Human Rights Institution (NHRI) is defined as “an independent national institution established by a Member or Observer State of the United Nations with a constitutional or legislative mandate to promote and protect human rights,” consistent with the Paris Principles. See General Assembly Resolution of 2019, https://www.ohchr.org/sites/default/files/Documents/Countries/NHRI/GANHRI/EN_GANHRI_Statute_adopted_05.03.2019_vf.pdf. This is distinct from a national human right plan or other monitoring mechanism.

2 The countries calling for progress on a U.S. NHRI during this review were Bahrain, Sudan, Germany, Haiti, Egypt, Ghana, Venezuela, Russian Federation, Qatar, Republic of Korea, and Ireland, and an Advance question on the topic was submitted by the UK. UN, Report of the Working Group on the Universal Periodic Review, United States of America (2011), A/HRC/16/11, available at https://2009-2017.state.gov/documents/organization/158198.pdf.