“Human rights at local and regional level”
Graz, 3 December 2013
Presentation by Andreas Kiefer, Secretary General of the Congress of Local and Regional Authorities of the Council of Europe
Ladies and Gentlemen,
It is a pleasure for me to have this opportunity today to speak about the importance of human rights implementation at the very grassroots, in our regions and local communities.
I am particularly pleased because this subject matter, which has become a new priority of the Congress of Local and Regional Authorities several years ago, has been taking on importance within both the Council of Europe and the European Union over the past decade. Its peculiarity is the approach that we are pursuing, which challenges the traditional view that human rights protection is the sole prerogative of national governments. Instead, we are speaking about many stakeholders in ensuring the full enjoyment and exercise of human rights by our citizens.
Within the Council of Europe, this approach first received particular prominence during the Swedish Chairmanship of the Committee of Ministers in 2007-2008, which organised a Forum for the Future of Democracy on the theme of the interdependence between democracy and human rights, and then two conferences on human rights implementation at local and regional level, involving both national governments and local and regional authorities.
In the European Union, one of the first steps of its Fundamental Rights Agency, FRA, was to establish a joined-up governance approach to human rights implementation and to bring together different stakeholders in the matter, including local and regional authorities.
In the Council of Europe Congress, we are convinced that local and regional governments and elected representatives are fully-fledged actors and stakeholders in creating conditions for the exercise of human rights in their communities and in ensuring their full implementation. However, this view is not immediately shared by everyone, both national governments and grassroots authorities alike.
Even for local and regional politicians themselves, their role, responsibilities and competences in human rights implementation are not always clear, which highlights the need to carry out human rights awareness-raising at the grassroots. This awareness raising must necessarily include human rights education and training, for elected representatives and their staff as well as for the local population at large.
As far as citizens are concerned, human rights education should be part and parcel of a broader approach of education for democratic citizenship, which is currently being pursued by the Council of Europe as one of its priorities – considering that active, civic-minded citizens are a crucial element of a participatory democracy model that we are seeking to build.
I will elaborate on these and other issues in my presentation, but first allow me first to say a few words about the Congress of Local and Regional Authorities, for the benefit of those of you who may not be familiar with this institution.
Within the Council of Europe, the Congress is a representative assembly of more than 200,000 territorial communities in 47 European countries, bringing together local and regional elected politicians in its two chambers, Chamber of Local Authorities and Chamber of Regions. The Congress is the only institution legally tasked with monitoring the application of the European Charter of Local Self-Government – this key Council of Europe convention in the field of local democracy. By doing so, the Congress is in fact monitoring the development of local and regional democracy on our continent. Based on the results of its monitoring, the Congress makes recommendations to both national governments and local and regional authorities on how to improve the situation.
This makes the Congress best placed to promote the delivery of human rights in our communities, to make local and regional authorities aware of their responsibilities for implementing human rights, and to ensure that our communities are providing equal protection to all their residents. The Congress does not monitor human rights, its action mainly consists in collecting relevant information on good practices and matters of concern in this respect in member States of the Council of Europe, and in particular to promote the role of local and regional elected representatives in this matter.
Drawing on its pan-European dimension, the Congress also serves as a forum for an exchange of ideas and proposals, for sharing experiences and best practices, and recommending them to other communities – in other words, as a launching pad for pan-European action on human rights at local and regional level. This makes our action on human rights key to complementing the policies and strategies at national and European level.
Ladies and Gentlemen,
Our understanding of what constitutes human rights has been evolving indeed, and along with it our understanding of ways to protect and realise them. As a result, human rights today is a vast category – we can speak about civil and political rights, social and economic rights, cultural rights, the rights of the child, minority rights, the rights of vulnerable groups, and this list is growing. At the same time, the complexity of their realisation, which relates to different levels of governance, is also increasing and brings to the forefront the need to connect these various rights and their delivery into a single coherent approach, involving a multitude of actors.
We in the Congress are convinced that in order to define this approach, we should begin by looking at what constitutes the implementation of human rights. Because beyond legal texts, human rights are concrete, even if we often speak of them in abstract terms. And because human rights are concrete, so is their realisation, which takes place not in an abstract legal space but in a concrete environment where people live, work and interact – in the environment of our communities, of our towns, cities and regions.
It was Eleanor Roosevelt that once said: “It is in the local community, close to the home … that people seek justice, equal opportunities and equal dignity without discrimination. If these rights have no significance there, then they are of no great importance anywhere else either.”
Indeed, local and regional authorities implement on a daily basis many of the human rights principles and standards set out in international treaties, such as the European Convention on human rights. However, usually we do not refer to social services and services of general interest as human rights.
For example, the right to housing means building and maintaining proper places of living. The right not be discriminated against and be treated equally with other members of community means overcoming intolerance and eradicating prejudicial attitudes. I could also refer to the direct responsibilities of local and regional authorities in matters of religious rights – building places of worship, protecting religious sites, ensuring conditions for the observance of religious traditions. And let us not forget a whole range of social rights, access to which is ensured to a great extent by local and regional authorities: allocation of housing, regulations for local employment, access to health care services and to schooling, and even to higher education in certain regions – I could continue with this list.
It is clear that adopting “good laws” in parliaments is not nearly enough to guarantee respect for human rights. It is also the fact that today, national governments, through their human rights structures, have to respond to the situation already existing on the ground, and to interact with local and regional authorities on putting in place appropriate practices. The transfer of competences to local and regional level, made possible by the European Charter of Local Self-Government and its principle of subsidiarity, gives real and concrete content to the responsibilities at local and regional level, including in matters of human rights.
The general trend toward decentralisation of power in member States and neighbouring countries, has led to a situation where local authorities have more and more responsibilities and, subsequently, they are increasingly involved with citizens’ fundamental rights and liberties.
Let us ask ourselves: if city authorities ban a demonstration, are they not directly involved in the exercise of the freedom of assembly? And if they ban posters from being placed in the city because of their content, is it not an infringement on the freedom of expression? And if brutal action by the municipal police is brought before the European Court of Human Rights, is it not a matter of concern for local authorities? I will stop here, but I could give many other examples.
In fact, the Congress asked a few years ago the European Court of Human Rights to provide a selection of judgements which concerned local and regional authorities. It would take a long time to speak on this issue in detail, but overall, it is interesting to note from this selection that the main alleged violations concerned Article 8 (respect for private and family life), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the Convention, as well as Articles 1 and 3 of Additional Protocol 1, dealing with the protection of property and the right to free elections. On the basis of this case-law, we can understand more clearly the scope of responsibilities of local and regional authorities, and the possible clash with fundamental rights when a balance has to be struck between restricting one interest while protecting another – for example, the risk of restricting freedom of assembly in order to preserve public security.
Let us ask ourselves another question: do national authorities really prefer to deal alone with this vast universe of human rights, or would they rather have partners at all levels of governance in addressing these issues?
We in the Congress strongly believe that human rights are a shared responsibility. While governments and national parliaments ratify international treaties on behalf of the state, the day-to-day work of implementing human rights standards often rests on the shoulders of local and regional authorities.
This was the essence of our resolution and recommendation on the role of local and regional authorities in human rights implementation, which we adopted in March 2010. In these texts, we recommend setting up appropriate structures and developing procedures at local and regional levels to assess and improve human rights situations, in particular in providing public services.
We recommend associating local and regional authorities in the drafting of national human rights strategies and policies. We also propose establishing independent complaints mechanisms at grassroots level, and enforcing guarantees of equal access to public services, as well as a system of their quality control. Furthermore, the Congress calls on local and regional authorities to elaborate indicators in order to gauge the fulfilment of human rights, and to provide budgeting of human rights action as well as human rights training for elected representatives and their staff.
Last but not least, the Congress decided to include the human rights implementation as an additional part to the monitoring process, an activity which in itself has been expanded to 10 monitoring missions per year, in order to take stock of the situation in member States.
In another resolution, adopted in October 2011, we proposed our specific methodology, which is based on the United Nations indicators, and selected rights – political, social or collective rights - which are relevant to the local authorities. This is putting in motion our political commitment to better implement human rights at local level.
Our position has also been supported by both current and former Council of Europe Commissioners for Human Rights. The former Commissioner, Thomas Hammarberg, has reiterated on many occasions that the human rights approach at local level empowers citizens to claim their rights and, thereby, improve their situation. According to Mr Hammarberg, such an approach is closely related to good governance, and local politicians and public officials should seize the opportunity to enhance the quality of life in their communities by implementing human rights in their ordinary work.
And yet, not all authorities at grassroots are fully aware of this opportunity and their role. However, it is encouraging to see many of them “waking up” to the idea. Many municipalities – such as Barcelona – have joined an initiative called Human Rights Cities, and some have already established positions of deputy mayor responsible for the protection and promotion of human rights, or offices of local ombudsmen, or have developed strategies in this respect – for example, Paris, Salzburg, Utrecht, Namur, Helsinki, Portsmouth, Oslo, to name but a few. I could give you examples of local human rights departments, such as in Austria, or good local practices in Slovenia with regard to the treatment of Roma and other nomadic populations.
The Congress encourages and promotes such practices, in particular the creation of offices of local and regional human rights ombudsmen. We are also seeking to ensure the sharing of these experiences. In fact, the Congress is currently preparing a third report, which will be submitted for adoption in March next year and which is a compilation of such good practices in Council of Europe member States and in other countries. The aim of this latest report is to highlight these best practices and to see how they can inspire similar initiatives in other European countries.
Ladies and Gentlemen,
We are convinced that the culture of human rights must be embedded at the level of our communities. As competences of local authorities enlarge, so do their responsibilities in terms of human rights protection and advancement. The exercise by citizens of their rights begins and is felt most in our communities, which is why we say that local authorities are the first line of defence of human rights but also the launching pad for their realisation. All human beings are bearers of human rights regardless of their legal status as non-citizens, refugees, migrants or foreign residents, regardless of whether they are women, children, elderly or people with disabilities, regardless of their religion, ethnic background, political views or sexual orientation. In the eyes of local authorities, they are – they must be, in any case – equal members of the community.
Today, it is important for governments to recognise that the national level is not the only deliverer of human rights, and that local and regional authorities must have the independence and autonomy to make decisions in response to the needs of their communities, within the law but free from undue control from the centre. In fact, this independence is guaranteed by the European Charter of Local Self-Government. It stems from the fact that local self-government is a fundamental political right in itself, which must also be recognised and protected at the national level.
The situation has been changing in the right direction. Over recent years, there has been growing ambition to ensure human rights implementation at local level, and national legislation has often given the responsibility for managing those rights to local and regional authorities. However, while some of their responsibilities in this field have been indeed delegated by the national government, some others follow directly from the principles of local and regional self-government, from the right of territorial authorities to organise their responsibilities in the most functional way. Thus, local or regional authorities are not only “agents” of central government – they have their own responsibilities to manage human rights on the same basis as central government will have the main responsibility for implementing human rights treaties.
There is also a growing recognition of the strong interrelationship between local governance, human rights and democracy. The balance between the delivery of human rights on the one hand, and local or regional self-government on the other hand is crucial to democracy. No human rights can be achieved without democracy, and no “real” democracy can be achieved without respect for human rights. At the same time, there is no real democracy without local democracy, and if human rights are not respected in everyday life, they never will be respected. It means that there is no conflict between the delivery of human rights and local self-government.
Quite the opposite. Today, our democratic system is based on our deeply-held conviction that effective democracy and good governance at all levels are essential for creating sustainable societies where people can enjoy a good quality of life and effective participation. Unconditional compliance with fundamental rights is a sine qua non of good governance, including at local and regional level. In other words, there is no good governance and no democracy without compliance with human rights. This interdependence means that respecting human rights also adds to the importance of the European Charter of Local Self-Government.
Allow me now to take a closer look at the first Congress’ report, focusing on the role of territorial authorities in the human rights implementation. The report analyses three aspects of implementing human rights: the balance of ensuring fundamental rights and honouring local self-governance, the variety of rights, and the challenge of finding good methods for implementation.
To begin with, we need to identify which rights we are talking about. Some rights serve as a basis for others, applicable to all individuals regardless of nationality, while some should by necessity be treated as based in their economic and cultural environment (like “newer” socio-economic rights). Local and regional authorities have varying degrees of responsibility depending on which rights and which areas affecting their citizens they are dealing with: whether they are dealing with refugees, racial discrimination or sexual intolerance; the right to the opportunity to work and to obtain employment free from prejudice and discrimination; the right to a decent home without undue restrictions; the right for children to be educated; the right to a good health care; or the right of different nationalities and religions within our communities to be given the same opportunities as indigenous citizens as well as the tools to enable them to take up those rights.
So, which are these rights? Some rights, such as freedom from racial discrimination, are protected by law and upheld by the European Court of Human Rights. They are not subject to negotiations. Civil and political rights and freedoms relate mainly to the state. Individuals also have economic and social rights, stemming from the solidarity between citizens. Those rights must be interpreted by the member state, being committed to do its outmost to comply with the Convention. The right to adequate housing, for example, might be fully established even if the standard is a “variable geometry” between member countries. It may even differ within a country. If the national level decides the minimum standard, then decision-making at local level might balance individual rights and local priorities. The challenge of giving everyone at least the national standard may be solved by a system of equalization.
Then, there is an issue of the welfare part of the local and regional responsibility. In a civilized society, social welfare places a significant role in recognizing the support required to disadvantaged groups such as disabled, ethnic minorities, sexually discriminated against persons, young children and older people. Local and regional authorities have direct responsibilities in these areas and in particular in enabling members of these groups to become full participatory and respected members of society.
There is also a question of the costs of human rights, which are not easy to calculate. Respecting freedoms or delivering social services in a way that respects human rights might not involve any additional costs other than administrative readjustment of procedures and training. But special support for sick or elderly people might result in additional economic pressure. In this context, Article 9.1 of the European Charter of Local Self-Government, guaranteeing adequate financial resources to local authorities, is of crucial importance and must always be respected. Negotiations between the stakeholders of different levels of society are also a good way of achieving a reliable result. They are the nexus between the human rights and the right to local self-government. Also, not complying with human rights may cost even more. Those costs are not only economic and social but also political.
Finally, the report addressed the question of methods for human rights implementation, including the needs of awareness-raising, pro-active approach, exchanges of experience and human rights mainstreaming. They all are building blocks of the action plan which we propose and which concerns both individual municipalities and the Congress itself.
What are the main lines of this action plan?
I would point out training, awareness-raising, benchmarking and setting up an independent complaints’ mechanism.
Local and regional elected representatives and their staff should be trained to respect human rights. Better awareness results in better governance and there is much to be gained by this. Training is also needed to improve professional qualifications of elected representatives and their staff, which should match today’s human rights requirements – including the knowledge of legal frameworks – and responsibilities allocated to the local level.
Secondly, human rights should be integrated into ordinary work of public administration, budgets and service delivery. National action plans and indicators must be drafted in co-operation with the local and regional level. This is a responsibility for the member states and for the Congress. A systematic multi-level dialogue must be encouraged between all levels of society.
There is no standard solution for implementing human rights. We need a tool-kit of methods available, adapting them to local circumstances. Exchanges of good practices are a key to success, and the Congress has a significant role to play as a mediator of successful experiences.
Finally, if things go wrong, citizens must have recourse to an independent complaints’ mechanism at local or regional level. It may take different forms - an ombudsperson (local or regional, national or thematic, decentralized from the national level), a consumer complaints’ board, patient injury board or anti-discrimination agency. Civil society organizations should also be involved as far as possible, and even private institutions advocating and promoting human rights may be used. Our residents must have sufficient support and advice to exercise their rights.
It is clear that implementing such measures and action plans is a major challenge for local and regional elected representatives, because their political commitment must be backed up by the necessary legal skills, financial resources and co-ordination with other stakeholders. Among limitations faced by local authorities in carrying out their work in favour of human rights I would list, first and foremost, limitations on their legal competences and the scope of their application. The legal framework delineating the distribution of responsibilities between national, regional and local authorities is specific in every country, but this is where boundaries are established on what local elected representatives can do.
These legal limitations go hand in hand with the adequacy or not of financial means and possibilities with which local authorities are endowed and which should correspond, ideally and as required by the European Charter of Local Self-Government, to the competences transferred to the local level. Adequate financial and human resources are essential for the implementation of specific measures, initiatives and projects, which is why – I should stress in this context – political and financial support from national governments is crucial for the success of our human rights action in communities. It is also of paramount importance to join and coordinate our efforts with all other stakeholders involved in human rights issues – private sector and civil society across the board, and the regional, national and international level on the bottom-to-top ladder.
Last but not least, I would also underline the importance of This highlights, once again, the need for effective human rights training.
Needless to say, in our work at the Congress we welcome and take on board all innovative ideas and action at territorial level. For example, many existing municipal networks today play an important role as generators of ideas, catalysts for positive change and a tool for pooling resources to advance proposals and implement measures in specific areas of community life.
But first and foremost, we need to reach out to our institutional partners. Within the Council of Europe, the Congress will be “connecting” its action with that of the Committee of Ministers, the Parliamentary Assembly, the Commissioner for Human Rights, and the Conference of international NGOs.
Outside the Council, of course we also need to join forces with the EU Committee of the Regions, other European organisations and networks of local and regional authorities, as well as the Fundamental Rights Agency of the EU, in order to ensure a joined-up approach to the human rights implementation across our continent.