Threats to Americans’ Human Rights
By Rhoda E. Howard-Hassmann, Ph.D
In the midst of the 2020 campaign for the US Presidency, many people worry that both the political left and the political right are undermining human rights. This article compares human rights in the US to international human rights law, in order to assess these possible threats.
Three documents comprise the International Bill of Rights. Along with other UN members, in 1948 the US voted for the non-binding 1948 Universal Declaration of Human Rights (UDHR). Two 1976 treaties elaborated on the UDHR and transformed it into international law. They are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Civil and Political Rights
The US ratified the ICCPR in 1992. Ratification means that a government has consented to be bound by a treaty. The ICCPR protects such rights as freedom of thought and expression (e.g. freedom of speech) and peaceful assembly. It also protects the right to vote and to participate in public affairs, the rule of law, and the rights of people detained by the police. And it protects freedom of religion.
Some American leftists would like to deny freedom of speech to some individuals or categories of people. These leftists practice identity politics. They believe that everything an individual says can be explained by their identity, for example as a white male. Many identity politics leftists have also campaigned to restrict freedom of speech, especially on US campuses. This trend to restrict freedom of speech is indeed worrisome and should be combatted.
Freedom of speech is a core human right. No one should be denied their right to freedom of speech because of their identity, either as Black or White, or female or male.
But the leftist threat to freedom of speech is far from the most important threat to civil and political rights in the US today. That threat comes from the political right, specifically the Republican Party and President Donald Trump. The right to vote has never been well-protected in the US. Women, African-Americans, Native Americans and other minorities had to fight for it. In some US states, convicted felons are not permitted to vote, even after they have served their sentences. In 2016, only 64 per cent of voting-age Americans was actually registered to vote. More recent initiatives further restrict the right to vote. These include the requirement that voters produce identification, and reduction of the numbers of polling booths.
In recent months the US has also witnessed restrictions on the right of peaceable assembly. Unidentified but presumably federal forces descended on Portland, Oregon in the summer of 2020 and arrested peaceful protesters, taking them to unknown locations. The Portland arrests seem to be a violation of the 2010 UN International Convention for the Protection of All Persons from Enforced Disappearance. The Convention defines enforced disappearance as “arrest…by agents of the State …followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” But the US has not ratified this Convention.
President Trump also undermines the rule of law in other ways. He routinely dismisses law enforcement officers with whom he disagrees. He pardons convicted criminals who were his cronies. He does not criticize heavily armed police forces that attack unarmed protesters or murder unarmed citizens. And President Trump calls journalists enemies of the people. So far, he has not actually been able to eliminate freedom of the press, which is a bedrock right in any democracy.
These recent attacks on civil and political rights have led many observers to wonder if the future of the US lies in fascism. The parallels with Nazi Germany are not exact, but are very worrisome. Just as the rich and powerful in 1930s Germany deferred to Adolf Hitler, so many Republicans who should know better have supported President Trump’s attacks on civil and political rights.
The US was once respected worldwide for its defense of civil and political rights. Yet it is now a country where such basic human rights are under attack.
Economic, Social and Cultural Rights
Meanwhile, the US has never supported the international law of economic and social rights. It has never ratified the ICESCR. Thus under international law, it is not obliged to protect human rights to health care, housing, social security, or an adequate standard of living.
Yet President Franklin Delano Roosevelt proposed some of these rights as early as 1944. He proclaimed a “Second Bill of Rights”. This second bill included rights to a useful and remunerative job, a decent home, adequate medical care, a good education, and adequate protection from the economic fears of old age, sickness, accident, and unemployment. When Senator Bernie Sanders claims that “health is a human right,” he is agreeing both with President Roosevelt and with international human rights law, but not with US law. The US is one of the few developed Western countries where citizens do not enjoy universal, tax-supported access to health care.
The US is also one of the most unequal developed Western countries. Tax cuts for the rich intensify that inequality. So does denial of health care to the poor, extremely unequal educational systems from the primary to the university levels, and inadequate social welfare. There is no human right in international law to economic equality. Yet scholars and activists know that the more unequal a society is, the less likely that those at the bottom will enjoy not only their economic and social rights, but also their civil and political rights. It is difficult to take part in the deliberative political process, for example, is you are working three minimum-wage jobs to support your family. Or if you are sick with Covid-19 and can’t afford medical treatment.
Collective Rights
Aside from the rights mentioned in the ICCPR and ICESCR, rights called “collective rights” are emerging in international human rights law. Collective rights include the right to peace, the right to development, and the right to a clean and healthy environment. Former Vice-President Joe Biden, the Democratic candidate for US President, acknowledges man-made climate change and its threats to the environment. President Trump and the Republican Party do not.
Unalienable Rights
Recently, Secretary of State Mike Pompeo made public the Draft Report of the Commission on Unalienable Rights. This report mentioned two foremost unalienable rights: religious liberty and property rights. Religious liberty is not threatened in the US, although some religious people may believe that they should be free to discriminate in their businesses against LGBT+ people. President Trump’s early attempt to impose a so-called “Muslim ban” on immigrants, later modified to ban immigrants from certain Muslim majority countries, did threaten the freedom of religion of prospective immigrants.
As with freedom of religion, no one threatens Americans’ property rights. Even people whom some members of the political right consider to be extreme leftists, if not “communists,” do not do so.
How Ought American Best Protect Human Rights?
I believe that social democracy is the best form of government to protect human rights. Social democracy is a variant of liberalism that views the social provision of economic security as an inherent part of respect for the individual. It is not communism.
Social democracy protects civil and political rights, which communism routinely violates. It preserves a market-based economic system and protects private property, which communism destroys. But social democrats also try to protect citizens against detrimental market forces and extreme inequality. Contemporary social democrats—like Senator Bernie Sanders and Representative Alexandria Ocasio-Cortez—also worry about collective rights, especially the right to be protected against climate change.
In other Western states, social democracy is a normal part of politics. It is not considered to be an extreme leftist position. The left wing of the Democratic Party is comprised of social democrats, or what Senator Sanders and Representative Ocasio-Cortez call “democratic socialists.” It is the political group most willing to protect the entire range of internationally-recognized human rights in the US.
The Origins and Applications of International Human Rights
By Professor Catherine Renshaw
History of International Human Rights
The international human rights project has always been deeply political. When the Universal Declaration of Human Rights was drafted, in the aftermath of the Second World War, the United Nations’ Economic and Social Council (UNESCO) assembled a group of philosophers from around the world to debate the foundations of human rights. The drafters believed that a shared basic understanding of human rights was essential. Without it, they thought it would be impossible to justify why human rights should be respected. Unfortunately, agreement could not be reached.
The gulf–primarily between proponents of liberalism and proponents of communism–was too wide. For liberals, rights are inherent in every individual and their importance lies in the fact that they allow individuals to shape their own destinies. For communists, rights and duties exist only within a particular social context and their purpose is to further the common goal of historical progress.
The drafters of the Universal Declaration of Human Rights, rather than abandoning the idea of forging a common agreement, decided to focus instead on what they could practically agree on. They reasoned that regardless of different philosophical starting points, all (or most) faiths and ideologies would agree that there are certain things that human beings simply should not do to one another (e.g. enslave, torture, or take away another’s life or freedom without reason). There are also certain things that all humans need in order to live with dignity such as work, food, housing and education. The Universal Declaration of Human Rights was drafted as a basic list of these things. In his Introduction to UNESCO’s Symposium in 1948 Jacque Maritain quotes one of the Declaration’s drafters: “we agree about the rights but on the condition that no one asks us why.”
What Threatens Americans’ Human Rights?
The “why” matters, however. If the question is “what threatens Americans’ human rights?” then it is a poor answer to simply point to the ways in which the policies and practices of different political leaders do or do not conform to some or many of the provisions of international human rights conventions. We need, instead, to circle back to why these rights (to healthcare, to speak freely, to assemble and protest, to feed one’s family) matter. What is their essential value, why should they be protected, why can’t they be compromised or traded away to achieve some other objective?
The answer to these questions looks very different depending on one’s philosophical perspective. If we believe that rights matter because they protect our ability to control our own destinies and live our lives the way we choose, then rights connected with achieving this purpose take on an absolute quality. To trade them away or compromise them undercuts their very purpose. But if rights matter because they are necessary for communal social progress, then we can readily comprehend that they might need to be balanced against other social priorities (e.g. civil peace, social stability, conformity to the majority’s cultural values and mores). The result of the post-World War Two decision to create a list of human rights that could practically be agreed on rather than philosophically justified left open a wide terrain for reasonable disagreement about how rights could be interpreted, balanced, limited or applied. That disagreement continues in American politics today.
Individual Rights, Communal Responsibilities
For those of us who observe the United States from the outside, it long seemed that the U.S. ascribed to a philosophy of human rights that was tied to the importance of individual self-determination. These rights are on full display in the Bill of Rights, which protect an individual’s right to practice religion, speak and assemble, petition the government, own a firearm, a speedy and public trial by impartial jury; the Bill of Rights also protects against unreasonable search and seizure, self-incrimination and double jeopardy, and cruel and unusual punishment.
Yet this did not exclude the importance of community and social solidarity. It is unlikely that US citizens would disagree with Article 29 of the Universal Declaration of Human Rights: “everyone has duties to the community in which alone the free and full development of his personality is possible.” But it seemed clear that the country’s history and political culture arced towards an understanding of rights that emphasised individual freedom; and that a flourishing society was one where individuals were equally empowered and able to imagine the kind of life they wanted to live and know that the tools to realise it were within their reach. This is the reason why basic social and economic rights are not being provided; the reason why US citizens should be outraged about their country’s infant mortality rate or the problem millions of Americans have in accessing water and sanitation.
From this perspective, the important human rights question for people in the United States is not: Has there been a breach of certain Articles in international human rights conventions? The important human rights question is: How do policies, laws, directives or actions further the power or individuals to realise the life they want to live? The life most individuals want to live is life within a community, so the necessary corollary is: How do policies, laws, directives or actions strengthen the community so that individuals within it live with maximal autonomy, freedom and potential for self-realisation?
Beyond Political Parties
There will always be a gulf between human rights as they are understood and practiced within different countries and the doctrine of international human rights law. In the U.S., the gulf existed long before the rise of Donald Trump. At the heart of the current problem is not the fact that the US is breaching the provisions of international human rights conventions. Nor is the solution to the current problem Americans voting for whichever political party seems most likely to cleave to a particular understanding of international human rights law. The solution lies in the country’s political leaders–on both sides–remembering the overarching purpose for which human rights policies and indeed all their political endeavours should be directed.
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Rhoda E. Howard-Hassmann
Rhoda Howard-Hassmann, Ph.D., FRSC is Professor Emeritus at Wilfrid Laurier University, where from 2003 to 2016 she held the Canada Research Chair in International Human Rights. She has won several academic awards for her work on international human rights, and is a Fellow of the Royal Society of Canada. She is the author of eight books, most recently In Defense of Universal Human Rights (2018), and State Food Crimes (2016), and is co-editor of four others, most recently The Human Right to Citizenship (2015). She blogs at Rights and Rightlessness.
Catherine Renshaw
Dr. Catherine Renshaw is a Professor in the School of Law at the Western Sydney University. She has also been a Visiting Scholar at the Regulatory Institutions Network, Centre for International Governance and Justice, Australian National University. Catherine completed her law degree at the University of New South Wales, her Master of Laws at the University of Sydney and her PhD at the University of Sydney. Catherine is admitted to practice as a lawyer in the Supreme Court of New South Wales and the High Court of Australia. She has practiced as a solicitor for major law firms in Sydney and Newcastle and for the Legal Aid Commission of New South Wales.