Taking up office as Council of Europe (CoE) Commissioner for Human Rights, Dunja Mijatović is clear about her priorities and vision: ‘In a word, it is: implementation’. In light of this continuous concern, local authorities are increasingly seen as potential guarantors of grassroots protection. Their proximity to and knowledge of local communities and issues, as well as their pragmatism when compared to central governments, allows for a targeted human rights approach. In order to strengthen the efforts of subnational authorities, the CoE Congress has released a tool for promoting human rights at local and regional levels: a Handbook on Human Rights for those working for local and regional authorities, informing them about more than 65 best practices from over 23 countries.
The Handbook does not address all human rights, or to be more specific, all rights-holders. It concentrates on the issue of discrimination against three groups, namely refugees, asylum seekers and migrants; Roma and Travellers; and LGBTI people. This focus allows more detailed suggestions to be provided to authorities and civil servants dealing with these specific issues.
The Handbook’s direct language further enables this. It tells its audience: ‘You are a human rights champion: Whatever the degree of competences of your authority, you protect and promote your citizens’ rights every day’. ‘Legalistic’ terminology is omitted completely. No (comprehensive) list of human rights conventions or relevant articles is provided; no mention is made of case law or the status of and differences between different (categories of) human rights. Indeed, the Handbook takes an indivisible approach to rights protection, focusing on civil and social rights alike. A downside to this informal approach is that there may be confusion as to what is actually required, in terms of human rights, and what is merely ‘suggested’. For example, the Handbook recommends: ‘Don’t segregate but mix communities!’ as well as to ‘[e]ngage the refugees individually and collectively in all decisions that concern their situation’. These are valuable suggestions, but they lack clarity as to what must be complied with, which recommendations should be prioritised, and what the legal consequences of not acting accordingly might be.
In reality, after all, legal contexts and backgrounds play an important role in the actual (or perceived) options that authorities’ have at their disposal. Let us look at two examples, illustrated by human rights issues faced by municipalities in the Netherlands.
A first bureaucratic hurdle is the ‘compartmentalisation’ of authorities’ competences, i.e. the fact that a single civil servant or unit is only competent to deal with a narrow issue, embedded in a legal framework that only allows for so much discretion. ‘Taking a human rights approach’ – involving an integrated look at the situation in light of the ‘indivisible’ rights concerned – is then possible only to the extent that the existing structures allow. Of course, these structures can be altered, but this is easier said than done. In the Netherlands, responsibilities for services for persons with physical and mental disabilities, youth care, and work and income support have recently been transferred to municipalities. The aim of this decentralisation is to guarantee ‘tailored provisions’ by ‘nearby’ authorities. Yet experience shows that an integrated approach, placing the human rights of those concerned first, is difficult to implement.
Second, the potential of municipalities or cities to fill ‘human rights gaps’ may be hampered by a lack of support at state level. This can be due to, for example, the (perceived) lack of binding legal obligations to provide certain services and protection, or economic reasons for not wanting to grant ‘too much’. As the ongoing discussion on the provision of ‘bed, bath and bread’ for undocumented migrants in the Netherlands shows, the willingness of local authorities to guarantee basic needs is not always welcomed by central government. Even though the European Committee on Social Rights has held that the Netherlands violates the European Social Charter for not granting minimum social protection, the government argues that this ‘social rights obligation’ is not binding and need not be complied with. As a result, particular dedication is needed, even for this type of ‘minimum’ rights protection. Indeed, it is clear that human rights compliance – by all authorities – is especially important when it comes to minimum protection for the most vulnerable. More about this specific topic can be read here.
The need for local authorities to better understand which requirements are binding, in what circumstances, and what should be prioritised, is augmented in light of the fact that local authorities’ official role and responsibilities in protecting human rights are being increasingly emphasised. This can be seen, for example, in the Final Report of the UN Human Rights Committee on the Role of Local Government in the promotion and protection of human rights and the Concluding Observation of the Committee on Economic, Social and Cultural Rights to the Netherlands (par. 17).
Having said this, it goes without saying that the CoE Congress’ Handbook is a very welcome and valuable addition in the efforts to realise the human rights potential of local authorities. Its dissemination, as well as its translation and extension to other topics and rights-holders, should be encouraged.