Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Human rights bodies and mechanisms
Role of local government in the promotion and protection of human rights – Final report of the Human Rights Council Advisory Committee
I. Introduction 3
II. Definition of local government 3
III. States and local governments: Shared and complementary duties to respect, protect
and fulfil human rights 5
IV. Role of local government in the protection and promotion of human rights 7
V. Main challenges faced by local governments in the protection and promotion of human rights 9
VI. Human rights mechanisms at the local level 10
VII. Human rights city: Conceptual framework and guiding principles 11
VIII. Role of civil society in the planning and implementation of activities for the promotion
and protection of human rights at the local level 14
IX. Best practices 14
X. Conclusions and recommendations 17
1. In August 2012, the Human Rights Council Advisory Committee submitted a research proposal on local government and human rights (A/HRC/AC/9/6) to the Council for its consideration and approval.
2. On 26 September 2013, the Council adopted resolution 24/2, in which it took note of the above-mentioned research proposal and requested the Advisory Committee to prepare a research-based report on the role of local government in the promotion and protection of human rights, including human rights mainstreaming in local administration and public services, with a view to compiling best practices and main challenges, and to present a progress report thereon to the Council at its twenty-seventh session.
3. The Advisory Committee was also requested to seek the views and inputs of Member States, relevant international and regional organizations, the Office of the United Nations High Commissioner for Human Rights (OHCHR) and relevant special procedures, as well as national human rights institutions and non-governmental organizations (NGOs), in order to prepare the above-mentioned report.
4. At its twelfth session, in February 2014, the Advisory Committee established a drafting group tasked with the preparation of the said report and designated the following members of the Committee as members of the drafting group: Mario Luis Coriolano, Hoda Elsadda, Latif Hüseynov (Rapporteur), Anantonia Reyes Prado, Dheerujlall Seetulsingh (Chair), and Imeru Tamrat Yigezu. Subsequently, Katharina Pabel joined the drafting group and replaced Mr. Seetulsingh as Chair, while Ms. Elsadda replaced Mr. Hüseynov as Rapporteur. Changrok Soh and Laura-Maria Crăciunean also subsequently joined the drafting group.
5. The drafting group elaborated a questionnaire, in accordance with Council resolution 24/2, which was disseminated to different stakeholders. To date, a total of 67 responses have been received: 22 from States, 20 from national human rights institutions, 10 from NGOs, 12 from local authorities and 3 from international or regional organizations.
6. In line with Human Rights Council resolution 24/2, a progress report was submitted to the twenty-seventh session of the Council with the recommendation that the Council request the Advisory Committee to submit a final report at its thirtieth session. At its twenty-seventh session, the Council adopted resolution 27/4, which took note with appreciation of the Advisory Committee’s progress report, and requested the Committee to continue its research and to submit a final report on the role of local government in the promotion and protection of human rights to the Human Rights Council at its thirtieth session.
7. The Council also requested the Committee, when elaborating the final report, to include therein the main challenges faced by local governments in the promotion and protection of human rights, and to make recommendations on tackling those challenges based on best practices in human rights mainstreaming in local administration and public services.
II. Definition of local government
8. Local government is commonly defined as the lowest tier of public administration within a given State. In unitary States, local government usually comprises the second or third tier of government, whereas in federal States, it is constituted as the third or sometimes fourth tier of government. Local government aims at bringing government to the grass roots and enabling citizens to participate effectively in the making of decisions affecting their daily lives. As the level closest to the citizens, local government is, in principle, in a much better position than central government to deal with matters that require local knowledge and regulation on the basis of local needs and priorities.
9. The organization and functioning of local government vary considerably between countries. Different names are used for local government entities in different countries (county, prefecture, district, city, town, borough, parish, municipality, village, etc.). Local governments exist geographically both in urban and rural settings.
10. Local governments possess certain powers conferred upon them by legislation or directives of the higher levels of government.1 These powers consist, in substance, in regulating and managing certain public affairs related to the local surroundings and delivering certain public services. The extent of powers of local government should always be analysed in the context of relations between local authorities and central government or regional authorities. In general, in unitary States, central governments tend to shoulder the responsibility for the planning, programming, regulating and funding of houses, and local governments manage implementation with varying degrees of autonomy. In federal systems, on the other hand, local governments tend to have more autonomy regarding programmes, policies and implementation of housing (Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Leilani Farha (A/HRC/28/62)). One of the important features of local government is that it has a specific, subordinate regulatory power for the exercise of its function which is, however, subject to compliance with the law.
11. Although in some countries “local government” and “local self-government” are used interchangeably, given the fact that local government has different forms in different countries, these two concepts should be differentiated. Local public administration can be exercised not only by local self-government entities (e.g. municipalities), but also by local units of State administration; the former are directly elected by the local population and enjoy wide-ranging autonomy, whereas the latter act as agents of the higher authorities and their officials are appointed by and accountable to those authorities. Local self-government is thus based on the principle of decentralization, and local State administration is based on the principle of deconcentration.
12. The degree of self-government enjoyed by local authorities can be regarded as a key element of genuine democracy. In this regard, political, fiscal and administrative decentralization is essential for localizing democracy and human rights. It should be borne in mind that democracy is not possible without respect for human rights and no human right can be achieved without democracy. Nevertheless, local self-government does not automatically lead to participatory democracy. While decentralization in general works towards the empowerment of citizens in decision-making and control over policies, certain measures and procedures must be securely in place to create the necessary environment to make democratic participation possible and effective.
13. The role of local authorities should not be limited to mere executors of decisions taken and policies developed without them. On the other hand, local independence should have certain limits clearly prescribed by law, and mechanisms should be available for supervising the legality of local authorities’ activities. Democratic checks and balances mechanisms are essential for augmenting the capability of local government in implementing human rights. Government officials who are accountable to voters are more likely to respond to citizens’ demands than those who are not.2
14. To ensure effective local governance and adequate implementation of human rights at the local level, it is important to have a proper legal framework for local government. The organization, powers and functions should be clearly prescribed by law. Further, national legislation should delineate clearly the responsibilities and powers of central and local government authorities in relation to one another.
15. Local government should preferably be recognized in the national constitution; indeed, in a number of countries, the constitutions specifically protect local government autonomy. It should be underlined that constitutional protection provides the greatest guarantee of stability. A specific law on local government passed by a national parliament is the next best solution in this regard. In a few countries, legal safeguards are in place to maintain the stability of laws governing local government. In Hungary, for example, the Law on Local Authorities can be adopted or amended only by a two-thirds majority of the parliamentarians present. The same applies to any legislation restricting the rights associated with local self-government.
16. It is noteworthy that the principles of subsidiarity, decentralization and accountability are explicitly envisaged in a number of countries as main principles of local government. Furthermore, the respective laws provide for the right of local authorities to have recourse to a judicial remedy in order to ensure respect for such principles.
III. States and local governments: Shared and complementary duties to respect, protect and fulfil human rights
17. As a matter of international law, the State is one single entity, regardless of its unitary or federal nature and internal administrative division. In this regard, only the State as a whole is bound by obligations stemming from international treaties to which it is a party. Thus, by becoming a party to an international human rights treaty, a State assumes obligations to respect, protect and fulfil human rights. More specifically, only States are obliged to submit reports as required by the respective universal and regional human rights treaties, and only States can be the subject of individual or inter-State complaints under such treaties. Furthermore, a State appearing before an international human rights complaints mechanism cannot defend itself by claiming that the alleged violation was committed by a local authority.
18. It should also be emphasized that under general international law a State, as represented by the central government, is responsible for all acts of all its organs and agents.3 In addition, when it comes to State responsibility, despite its internal organization, in accordance with customary international law, there are several principles that apply. Firstly, the structure of the State, the functions of State organs and even the mere definition of what constitutes a State organ are not, in general, governed by international law. It is within State sovereign competence to decide how its own administration is to be structured and which functions are to be ascribed to its central and/or local government. But, while the State remains free to determine its internal structure and functions through its own law and practice,4 for the purposes of international responsibility the conduct of its institutions, administrative divisions performing public functions and exercising public powers is attributable to the State, even if those institutions are regarded, in domestic law, as autonomous and/or independent of the central executive government.
19. According to customary international law, it is recognized that “the conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State”.5 In its General Comment No. 16, the Committee on Economic, Social and Cultural Rights emphasized, “Violations of the rights contained in the Covenant can occur through the direct action of, failure to act or omission by States parties, or through their institutions or agencies at the national and local levels”.6 It should be noted that the conduct of certain institutions exercising public powers is attributed to the State even if those institutions are regarded in internal law as autonomous and independent of the executive Government.7
20. Illegal acts of any public authority, including local government, are attributable to the State even if they are ultra vires or contravene domestic laws and instructions. This flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.
21. It is the central government which has the primary responsibility for the promotion and protection of human rights, while local government has a complementary role to play. Upon ratifying an international human rights treaty, a State may delegate implementation thereof to lower tiers of government, including local authorities. In this respect, the central government might need to take necessary measures at the local level, in particular, to establish procedures and controls in order to ensure that the State’s human rights obligations are implemented. Local authorities are obliged to comply, within their local competences, with their duties stemming from the international human rights obligations of the State. Local authorities are actually those who are to translate national human rights strategies and policies into practical application. Representatives of local authorities should therefore be involved in the drafting of such policies. In decentralized States, local government can play a more proactive and autonomous role as regards the protection and promotion of human rights. Institutionalized cooperation on human rights between the central and local governments can have a positive impact on the level of implementation of the international human rights obligations of the State.
22. To comply with their human rights responsibilities, local authorities should have necessary powers and financial resources. Adequate implementation of human rights, particularly economic, social and cultural rights, by local authorities require financial resources, which are not available everywhere; this should be taken into consideration both at the national and international level. It should be particularly emphasized that, whatever powers that are conferred upon local authorities, they would not be effective if no financial resources were available to carry them out.
23. The principle of shared responsibility of different tiers of government for the protection and promotion of human rights has been on several occasions underlined by the United Nations human rights treaty bodies. Thus, in its General Comment No. 4 (the right to adequate housing), the Committee on Economic, Social and Cultural Rights noted that States parties to the International Covenant on Economic, Social and Cultural Rights should take steps “to ensure coordination between ministries and regional and local authorities in order to reconcile related policies (economics, agriculture, environment, energy, etc.) with the obligations under article 11 of the Covenant”.8
IV. Role of local government in the protection and promotion
of human rights
24. The legislation of a number of States – in some cases, at the constitutional level – explicitly requires local government to respect human rights (e.g. Australia, Côte d’Ivoire, Morocco and Slovenia). In some other States, the respective constitutional requirement applies to all public powers (e.g. Austria, Azerbaijan, Bosnia and Herzegovina, Germany, Kenya, Lithuania, Malaysia, South Sudan, Spain and Togo). In Luxembourg, the powers of the communes must be exercised in accordance with the law, which means that they are obliged to observe human rights guaranteed by the law. In some countries, the duty of local government to observe human rights is limited in the law to specific rights or principles. For instance, the Local Self-Government Act of Serbia stipulates that municipalities must ensure promotion and protection of the rights of national minorities and ethnic groups. In Slovenia, municipal administrations are required by law to take care of gender mainstreaming. In Ireland, the local government legislation does not specifically provide for the promotion and protection of human rights, but in discharging their functions local authorities are required to have regard for the need to promote social inclusion. Similarly, the legislation on local governments in India does not specifically mention protection of human rights among their responsibilities; however, the constitutionally mandated municipal functions directly relate to core human rights, such as implementation of initiatives for democratic inclusion, welfare measures and the local justice system.
25. Having an explicit legal provision which obliges local government to promote and protect human rights appears to be a more preferable approach. Local authorities are thus made aware of their human rights responsibilities, understanding that any failure to comply with these responsibilities will entail their liability under national law as well as international responsibility of the State as a whole. Further, such a provision imposes a clear obligation on local authorities to apply a human rights-based approach to delivering public services within their defined competences. Consequently, it may well encourage rights holders to claim their rights vis-à-vis local authorities.
26. Local authorities are close to citizens’ everyday needs and they deal with human right issues on an everyday basis. Therefore, there exists a clear and strong connection between human rights and local government. When performing their functions, local authorities take decisions relating in particular to education, housing, health, the environment, and law and order, which are directly connected with the implementation of human rights and which may enforce or weaken the possibilities of its inhabitants to enjoy their human rights. Furthermore, local government is always facing the risk of discriminatory practices against perceived outsiders, such as immigrants or ethnic minorities, to the local community. In the area of housing, for example, “scapegoating, stigmatization and discrimination against homeless people” are often more pronounced at the local level. Integrating a human rights dimension in all local government initiatives is vital for addressing these violations. Actually, it is difficult to imagine a situation of human rights being realized where there are no local authorities to provide the necessary services. Local officials are thus responsible for a wide range of human rights issues in their day-to-day work. However, this work is rarely perceived as human rights implementation, neither by the authorities, nor by the public. Consequently, human rights remain distant as a frame of reference or analysis in most policies and practices at the local level, while they may actually be human rights in practice.9 In this regard, it should be borne in mind that the real effect of human rights is experienced locally.
27. Human rights duties of local government follow the classical tripartite typology of States’ human rights obligations, namely, the duty to respect, the duty to protect and the duty to fulfil. The duty to respect means that local officials must not violate human rights through their own actions. It requires local government to refrain from interfering with the enjoyment of the rights and freedoms of all persons within its jurisdiction. For example, in relation to the freedom of religion, local government may not prohibit religious communities, beyond the permissible limitations, from using public squares or municipal buildings for religious celebrations. Regarding the right to health, local government may not deprive certain communities or groups of access to health care facilities. The duty to protect requires measures to ensure that third parties do not violate the rights and freedoms of the individual. For example, local authorities are required to take action to ensure that children are not prevented by others from attending school. The duty to protect can necessitate creating safer urban environments that reduce the risk of violence, for example against women. The duty to fulfil means that local government must take positive action to facilitate the enjoyment of the rights and freedoms. For example, local authorities are obliged to fulfil the right to education by sustaining a good educational system. To comply with the duty to fulfil the right of individuals not to be discriminated against, local human rights mechanisms such as ombudspersons or specialized anti-discrimination agencies can be established.
28. Further, local authorities should promote the understanding of and respect for human rights of all individuals within their jurisdiction through education and training. In particular, local authorities should organize, on a systematic basis, human rights training for their elected representatives and administrative staff, and the dissemination of relevant information among citizens about their rights. By promoting human rights, local authorities can help build a culture of human rights in the community.
29. Local authorities should pay particular attention to the promotion and protection of rights of vulnerable and disadvantaged groups such as persons with disabilities, ethnic minorities, indigenous communities, victims of sexual discrimination, children and elderly people. In this respect, the quality of the services that local governments provide to such groups “tests” the degree to which local governments in practice respect human rights.10
30. In a number of countries, efforts are made to mainstream human rights into local authorities’ activities. Thus, measures are taken to foster participatory governance, to conduct human rights-based audits and impact assessments, to reframe local concerns as human rights issues, to establish procedures for verifying the compatibility of local policies and regulations with human rights, to report on local compliance with human rights treaties, to provide systematic human rights training to local civil servants, to raise public awareness of human rights, etc. Drafting a local human rights charter (or human rights ordinance)11 setting out specific human rights responsibilities that fall upon the local government can be regarded as another important step towards localizing human rights. In this context, it is highly desirable that local authorities have human rights offices with sufficient human and financial resources that could fully take charge of human rights issues within the respective local competences.