Whither human rights in the era of Trump

On 20 January 2017, the 45th President of the United States of America was sworn in after a bruising political campaign that left the country bitterly divided and the US electorate deeply polarised. The winner, Donald J. Trump, garnered 304 electoral college votes to take the White House, but lost the popular vote by an estimated 3,000,000 votes to his chief opponent, Democratic party candidate, Hillary Clinton. ¹

Trump ran on a campaign that was anti-trade, anti-immigrant, anti-elitist and often racist and xenophobic. His campaign promises included a “Muslim ban” that would prevent any Muslims coming to the US; ² negative comments about women, African-Americans, Hispanics and the disabled; building a wall on the US-Mexico border that “Mexico” would pay for; and an immediate withdrawal from the Trans-Pacific Partnership, the Paris Climate Change Agreement, and renegotiation of NAFTA and the NATO Alliance. In short, a broad-side assault on globalisation, racial and religious minorities and the entire post-war international legal system. Trump’s negative campaign rhetoric and illiberal policies exposed the shadow-side of US politics, and his election was followed by a surge of hate crimes according to statistics compiled by the Southern Poverty Law Center. ³ His attacks on globalisation resonated with many voters, especially with those who had lost good, well-paying factory jobs as many US companies sought cheaper labor abroad and technological innovations made their jobs redundant. ⁴ Many attributed his electoral success to a strange alliance of the far and alt-right, the Republican Party, and conservative values (such as tax cuts and a reduced role for government) combined with a populist agenda summarized by the campaign’s slogan “Make America Great Again,” a slogan reinforced in his inaugural address which promised that “from this moment on, it’s going to be America First.” ⁵

Although many observers hoped that Trump, once elected, would move away from the inflammatory rhetoric of his campaign, this turned out to be wishful thinking as Trump and the Republican-controlled Congress immediately began to take aim at the international economic order and the international institutions and alliances charged with maintaining international peace and security once they assumed office. Perhaps this should not have been surprising. After all, “America First” was a committee established in 1940 to keep the United States out of World War II. Isolationist in outlook and heavily tainted with anti-Semitism, proponents of the America First ideology like Charles Lindbergh argued that those urging intervention into the war were part of a Jewish plot to get America into the war against Hitler, and that influential Jews in the US posed a “great danger” to it. ⁶ The success of the Brexit campaign in summer of 2016 was also a sign of changing times and angry electorates. Indeed, we seem to be in an age of “Global Trumpism,” as Foreign Affairs Magazine has called it; ⁷ an age that may have negative consequences for international peace and security and the promotion and protection of human rights.

Even before the President took office, members of the US House of Representatives had introduced legislation to “restore American sovereignty,” by pulling the US out of the UN, ⁸ and on his third day in office he signed an order cancelling US participation in the Trans-Pacific Partnership trade agreement. ⁹ His new Ambassador to the UN, Nikki Haley, issued veiled threats to countries disagreeing with the US by noting, in her remarks as she presented her credentials to UN Secretary-General António Guterres, that the US was “taking names” of countries that did not have its back. ¹⁰ Then on day seven came the so-called “Muslim ban,” in which the President issued an Executive Order immediately suspending the entry of all refugees for 120 days and banning immigrant and non-immigrant individuals from seven countries – Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen – from entering the US, subject to an exception for “religious minorities,” which most observers believe was a thinly-veiled reference to Christians (although other religious minorities could have been included). ¹¹ The ban was hastily rolled out, causing distress at airports around the world as individuals with valid travel documents were either prevented from boarding, held in detention incommunicado in the United States, or even deported, and while it was almost immediately suspended by a federal court order on constitutional grounds (which was subsequently upheld on appeal), ¹² it is worrisome that little of the discourse in the United States focused upon the many human rights treaties that the ban contravened, each of which prohibit discrimination on the basis of nationality as well as religious-based discrimination, including the Refugee Convention, the Convention on the Elimination of Racial Discrimination, and the International Covenant on Civil and Political Rights. ¹³ This was also true of the President’s revised travel ban which was scheduled to enter into effect on 16 March 2017, but which was, like the first Executive Order, immediately blocked by the federal courts on the basis that it was essentially a “Muslim ban” that violated the religious freedom provisions of the US Constitution. ¹⁴

While “Muslim ban 1.0” and “Muslim ban 2.0” are worrying enough on their own terms, equally disturbing is the tendency of the President to go after the judiciary for rulings he does not like in personal and crude ways, suggesting little respect by the administration for courts and the rule of law. After a federal judge struck down the second travel ban, the President told a cheering crowd that it was “done by a judge for political reasons.” ¹⁵ This comment follows others made in statements and on his twitter account, including a criticism of a judge overseeing a lawsuit over Trump University, whom he stated could not be impartial because he was of Mexican descent, and the vitriol launched at Judge Robart, who had suspended the first travel ban. ¹⁶ An essential part of any democracy is separation of powers between the executive branch and the courts; an independent judiciary serves as a cornerstone of protection for the rule of law and, in particular, the rights of minorities. The US Constitution deems each of the three branches of government co-equal; in case of ambiguity or division, it is the United States Supreme Court that determines “what the law is.” ¹⁷

Likewise, the 45th President has launched an extraordinary attack on the press, berating journalists publicly, picking and choosing which news outlets to permit to attend press conferences, and calling reports by venerable and respected news outlets “fake news,” when those outlets – like the New York Times or CNN, contradicted the President’s reports. ¹⁸ The attacks directed at the press by the US administration have created so much international consternation that the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE, the OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information issued a “Joint Declaration on Freedom of Expression and ‘Fake News’, Disinformation and Propaganda” on March 3, 2017, expressing their “alarm” at

instances in which public authorities denigrate, intimidate and threaten the media, including by stating that the media is “the opposition” or is “lying” and has a hidden political agenda, which increases the risk of threats and violence again journalists, undermines public trust and confidence in journalism as a public watchdog, and may mislead the public by blurring the lines between disinformation and media products containing independently verifiable facts. ¹⁹

The Joint Declaration sets forth a lengthy set of general principles, standards on disinformation and propaganda, provisions on the positive duty of States to create an enabling environment for freedom of expression, as well as provisions on intermediaries, journalists and media outlets and stakeholder cooperation. The Joint Declaration is necessary in light of the fact that many governments have seized upon the Trump “fake news” mantra to argue that they, too, can attack or accuse the press of lying to as a way of controlling the media and enhancing their own power, ²⁰ a deeply worrisome trend in a world that has become increasingly dangerous for journalists. ²¹

The attacks upon the courts, the press, the truth, the environment, religious and racial minorities, women, ²² refugees, immigrants, the right to peace, and, more recently the poor (in the now-failed “American Health Care Act” ²³ ) in the new administration’s first eight weeks indicate that respect for human rights – and particularly international human rights – are going to be a very low priority for the United States under the 45th President. Additionally, the decisions to roll out the US Country Reports on Human Rights by tele-conference, without the presence of a high-ranking US Official, not to participate in hearings of the Inter-American Commission on Human Rights on US practices, ²⁴ and not to make human rights guarantees a condition of international arms sales ²⁵ send a signal that the new administration is not just indifferent to international human rights – but actively opposes them.

So, whither international human rights in the age of Trump? The activities of the new administration are reminiscent of the implacable attacks of the Bush administration against the International Criminal Court, although they are much more far ranging, attacking all rights and institutions at the same time. When Clinton administration officials returned from Rome in the summer of 1998 to discuss US strategy towards the Court in hearings before the Senate Foreign Relations Committee, one far-right opponent of the Court, John Bolton, stated that the US objective should be for the ICC to “wither and collapse.” ²⁶ With the election of George W. Bush, Bolton was able to promote his anti-ICC agenda as the newly appointed Undersecretary of State for Arms Control and International Security, and worked assiduously to try to kill the Court. ²⁷ He was unsuccessful because States supporting the Court banded together to protect it. The Bush administration’s opposition saddened many inside and outside the United States, but it proved to be a question of waiting it out so that the Court could begin its operations, do its judicial work, and prove its usefulness. This it did, and in 2008, the Obama administration successfully re-engaged with the ICC. ²⁸ Thus for the outside world, the best strategy in the face of an onslaught like the current one, may be for peace-loving and human-rights-loving States to work together to wait out the storm– to protect the institutions that have been built and to continue to show that democracy, human rights and international law can work.

Those of us inside the behemoth face even greater challenges. We have not only to convince ourselves that our voice matters in a country whose government we do not understand or support, but to use peaceful and legal means to try to block the most pernicious assaults on our own freedoms as well as the international institutions and legal frameworks that we care about. We must also listen to the grievances of those who, in their anger and frustration, put a man like Trump into office. As one author has observed:

Globalization unites and divides. It cements ties across borders while weakening old ties at home. It celebrates the transnational at the expense of old loyalties. It brings people together from around the globe while stirring new xenophobia. It destroys old industries and economies and creates new ones—not always in the same places. It makes some people richer and other people poorer, and the gap is growing. ²⁹

There is some comfort in knowing that a majority of Americans did not vote for the current regime; but it gives rise to despair in equal measure to see the government in the hands of a minority that seems, in its worst moments, deeply corrupt and intent on bending the entire populace to its will. One wonders whether Germans living in the 1930s had similar feelings of their nation sliding away from its moorings and slipping into authoritarian rule.

But 2017 is not 1933, and we have tools now that earlier generations did not. The internet and social media are powerful force multipliers, not only for the government but for the people. American institutions and traditions are still strong, as the court orders blocking the Muslim bans show. We have also seen the incredible activism and energy of ordinary US citizens who are showing up at town halls and pelting their elected representatives with phone calls and faxes, as well as participating in public demonstrations that appear to be growing in strength and number with each successive outrage. Part of Trump’s surprising success in November was due to the fact that nearly forty percent of eligible voters did not actually vote, and nearly 2.4 million people nationwide cast ballots but left the presidential line blank. ³⁰ Democracy cannot survive if citizens do not participate; as Alexis de Tocqueville wrote in Democracy in America, “within his own sphere, each person takes an active part in the government of society.” ³¹ Equally heartening, in the face of hateful incidents, religious minorities in the US have embraced each other; Muslim groups have raised money to repair desecrated Jewish cemeteries and Jewish organisations have reached out to comfort and support Muslims targeted by Islamophobia. ³² Perhaps the silver lining of the shadow lying across America is that it will bring out the kind of civic engagement needed to do the hard work that the US has not yet done to promote human rights at home: to embrace peace as a value, to understand that economic, social and cultural rights matter, and that, above all, the great evils of the past – slavery, the genocide of native Americans, sex and gender discrimination, Jim Crow laws and homophobia – must be acknowledged and remedied. Martin Luther King’s dream was not fully realised even in Obama’s America - it is under assault in Trump’s.

While it might be tempting - and even momentarily satisfying to those who have chafed at the US tendency to vaunt and overstate its own virtues - to watch the US descend into illiberal chaos, any gloating by the outside world would undoubtedly be short-lived as the impact of Global Trumpism became a reality. Instead, the world should support the effort of a majority of Americans to push the United States towards a kinder, gentler and more humane society, that is cosmopolitan, peaceful, tolerant and progressive, because in so doing, it will be supporting its own transformation as well. As a result of its extraordinary weight and power, the failure of the US multicultural experiment could mean the failure of the Western project of democracy and human rights, as well as the possible collapse of the Pax Americana and the international institutions created after the Second World War. While it is conceivable that something even better could replace them, their abrupt collapse would more likely lead to conflict, instability, a weakening of the world economy, and greater repression of human rights globally. A third global conflagration is not out of the question. As Americans fighting to protect and maintain universal values in the face of a government that disrespects them, we need allies outside our borders to support and assist us.

Predicting the future is a notoriously fickle business, but the Trump phenomenon feels like the gasp of a dying age in which fixed ideas about nationalism and national characteristics, race, and gender identity prevailed. It’s as if Archie Bunker just won the US election. ³³ The fact that young people in huge numbers voted against Brexit ³⁴ and against Trump ³⁵ leads me to believe that Gloria Steinem was right when she stated, on the day after the US election, that a vote for Trump was “a vote against the future, and the future’s going to happen anyway.” ³⁶ Putting energy into that positive vision – of peace, universal human rights and dignity – seems like the most practical way forward. To paraphrase Richard Falk, one can glimpse emerging future structures of power in the shadowland of today’s institutions and legal regimes, ³⁷ but it will take hard work and vigilance to call them into being. America’s struggle is the world’s struggle, and our struggle as Americans is to carry the world forward and not allow it to slip back. In the 1990s there was tremendous optimism about the possibility of a transition from geopolitics to humane global governance. ³⁸ That optimism led to the establishment of new institutions and legal regimes which have begun, but not yet completed their work. The current backlash is frightening, but it is also energising; forcing proponents of a progressive vision to fight to realise it and undertake the hard work of political and geopolitical transformation. So thank you, Mr. Trump, for inspiring us to action. And, in the meantime, see you in court.