December 15, 2016

Investing in International Human Rights in the Age of Trump

Posted by Emily Nagisa Keehn, Anna Crowe and Yee Htun

It is now well trodden discourse that the election of Donald Trump, like the rise in nationalist movements in Europe, is both creating and reflecting paradigmatic shifts in the way we view global institutions. These shifts point to pressing concerns for the international human rights project. The xenophobic, rights-abusive platform of the Trump campaign put the human rights community on notice, and we have assumed a defensive stance to protect the potential roll-back of hard-won progress. In the era of Trump, we believe the U.S. human rights community must continue to draw on international human rights law as an advocacy and accountability tool, partnering with international movements and actors to stop rhetoric from becoming reality.

For U.S. scholars, lawyers, policymakers and activists committed to the defense of human rights, the rhetoric and fledgling policies of the incoming administration have raised strategic and existential questions. In this new era, we are examining and debating critical concerns about the state and utility of international human rights law, and questioning where to place our resources. For those of us working within law schools, we face added questions from students, some of whom feel a crisis of conscience about where best to stake their social justice careers. From our perspective we must continue to invest in international human rights.

The flags of  the193 member states are back after the renovation of the "Allée des Drapeaux" at the Palais des Nations. 7 February 2014. UN Photo / Jean-Marc Ferré

UN Photo / Jean-Marc Ferré

To begin with, we must dispel with the false dichotomy that pits domestic rights against the international human rights regime. International human rights norms are implemented by domestic actors and often embedded in national constitutions.  And human rights abuses are not a phenomenon that ‘happens’ abroad, violating the rights of ‘others’ who are unconnected to us. The systemic interlinkages in our globalized world make us common rights-holders, in issues spanning trade and the environment, to counter terrorism.  The international system exists as a failsafe for local and domestic efforts.  No domestic space is a paradigm of human rights virtue and we all benefit from the scrutiny of global institutions.

Granted, international human rights law has limited power in U.S. courts, but it is not impotent.  We have seen its persuasive function in important Supreme Court Cases such as Lawrence v Texas, which struck down the sodomy law in Texas, and Roper v Simmons, which abolished capital punishment for people under 18. There is further work to do in pushing back against American exceptionalism by both diffusing international norms, and keeping human rights language and knowledge alive, in the U.S. legal community and judiciary – if anything, U.S. human rights activists have perhaps prematurely given up on the project of making international human rights law enforceable in U.S. courts.

History shows that human rights violations carry reputational risks, and have tangible costs for national security and the U.S.’s geopolitical position. For instance, the Bush-era war on terror and the torture memos made the U.S. an outlier to established international law, damaged its moral authority, and fanned the flames of conflict.

During this period of what may be a redux in U.S. human rights ‘deviance’, we must fight to limit damage to the integrity of human rights norms. This requires our continued engagement with global institutions mandated with international human rights law protection, to prevent and seek accountability for any new violations, and to protect against the dismantling of important gains. This could include backslides in progress under international U.S. leadership in the areas of LGBTQI rights, women’s health and reproductive rights, and a strengthened UN Human Rights Council. Protecting gains also means safeguarding against cuts in U.S. government support for human rights defenders around the world who are working with vulnerable people in hostile environments.

Finally, we must demonstrate heterogeneity and dissent in U.S. voices in international settings, and avoid brain drain and the deskilling of the U.S. human rights community. For humanistic and principled reasons, concern for human rights should not follow national borders or be driven by nationalist impulses. This cuts to the core of our group identity as a human rights constituency, committed to the foundational principles of universal application of human rights for all.

Today’s shifting ground and the risks of a regressive trajectory present an opportunity to re-double efforts and promote the resonance of international norms domestically. Now, more than ever, work needs to be done to bring the U.S. into a larger comparative framework.  Human rights actors are needed in both domestic and international institutions to serve as critical, reinforcing bridges between these two arenas.

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