//  3/29/17  //  In-Depth Analysis

International human rights law is under attack by the Trump Administration. That assault is most visible in Trump’s executive orders on refugees and immigrants, and in the increased intensity of immigration raids in the last two months—Administration actions that have sent shockwaves through the international human rights community.

But a quieter war is also being waged against international law and international human rights law as law. A draft executive order has proposed a moratorium on new multilateral treaties, describing the Convention on the Elimination of Discrimination against Women and the Convention on the Rights of the Child as “forc[ing] countries to adhere to often radical domestic agendas.” Secretary of State Rex Tillerson did not attend the State Department’s annual presentation of its human rights report on March 3, 2017. Less than two weeks later, Secretary Tillerson threatened to withdraw the U.S. from the U.N. Human Rights Council. During his visit to Japan, South Korea, and China that same week, the Secretary made only a few cursory mentions of human rights in relation to profoundly troubling situations in North Korea and China. The United States also recently failed to sign a joint letter to China regarding claims that human rights activists have been tortured while in detention in the country. And on March 21, 2017, the United States delegation skipped hearings before the Inter-American Commission on Human Rights regarding events in the United States, joining the (inglorious) ranks of Cuba and Nicaragua as countries refusing to participate.

With these actions the Trump Administration has signaled its reduced commitment to protecting human rights at home and abroad, undermined its commitment to international law and international human rights law, and threatened its foreign policy and national security objectives. This is distressing. This is unprecedented. And this is profoundly illogical.

The Trump Administration would downplay or dismiss all of these incidents, and flimsy justifications have been offered. “The Secretary of State doesn’t always attend the presentation of the human rights report” (true, but another senior official always attends instead). “The membership of the Human Rights Council is deeply problematic” (definitely, but the Council is still crucial for accountability in countries like Burundi and Syria). “Issues of security and stability were more pressing on Secretary Tillerson’s first trip to Asia” (alright, but human rights are fundamental to ensuring security and stability on the Korean peninsula). “It’s not appropriate for the U.S. to attend hearings before the Inter-American Commission while domestic litigation is ongoing” (well, that did not stop the Bush Administration from attending hearings on Guantanamo).

These incidents must not be dismissed. Individually and collectively, they portray an Administration that is frighteningly indifferent to human rights law and international institutions, and unwilling (or neglecting) to use the language of international law—in marked contrast to both the Obama and Bush Administrations. By turning away on such a public stage, the Administration has sent an alarming signal worldwide, to both allies and enemies, regarding the U.S.’s commitment to human rights. This means not only that U.N. member states are on notice that the U.S. might withdraw from the (allegedly) ineffective Human Rights Council, but also that victims of atrocities have been informed that the U.S. may well refuse to fund a tribunal to prosecute their persecutors, potentially increasing human rights abuses. By dismissing international human rights law, the Administration will disproportionately hurt the most vulnerable individuals.

The fact that it has been only two months offers no comfort. To the contrary, there is little sign of improvement ahead. At the moment, the State Department is acutely understaffed (especially at the senior official level) and the Secretary has apparently been sidelined from major foreign policy decision-making. The Administration’s proposed budget, moreover, would cut base funding for the Department of State and USAID to $25.6 billion, an almost 30% reduction from 2017. The draft budget doesn’t get into many specifics, but the current language doesn’t suggest that the Bureau of Democracy, Human Rights and Labor is going to come out a winner (particularly if one also looks at the views of the Heritage Foundation). How exactly the budget will affect the U.S. commitment to international law remains to be seen, but commentators don't seem optimistic. Accordingly, the signals that the Trump Administration has already sent regarding its lack of commitment to human rights must be taken at face value.

It is easy to speculate on why the Trump Administration is moving away from international law and human rights. Jack Goldsmith attributes the Administration’s attack on international law to a wide range of considerations: “economic nationalism, anti-cosmopolitanism, anti-elitism, a belief that international law does not reflect American values but threatens American institutions,” as well as the belief that “American peace, prestige, and prosperity were not being served by our foreign policy.” Adding to that list, maybe Administration officials believe there are good arguments for sidelining soft power in a time of hard power. Maybe they are wary of appealing to international law abroad when the human rights situation at home is so uncertain and subject to litigation. Maybe many of the (undeniably under-qualified) senior Administration officials don't know what international law is or how it works. These days, anything seems possible.

So it is not all that surprising that the Trump Administration has neglected international law and human rights from the get-go. After all, the President thinks torture works. This was never going to be the international lawyer’s dream presidency.

And it should be emphasized that it’s not just international human rights law on the chopping block. International trade, particularly free-trade agreements and the WTO, have been even more bluntly criticized by the President. International environmental law has also been threatened through cuts to the EPA and rumors that the U.S. will withdraw from the Paris agreement on climate change. The U.N. itself is a frequent target for derision, and in addition to grumblings about leaving the Human Rights Council, the U.S. is dramatically cutting back from the U.N. as a whole (so far no word on the Administration’s stance towards the International Court of Justice, but just wait until they find out about it.)

What is perhaps most deeply shocking and frustrating about all this is the myopia and short sightedness of the Administration’s actions. Even by its own lights, rejecting international human rights law will come back to haunt us. The Trump Administration, and its supporters in Congress, will need these laws, norms, and institutions down the road. Republican congressmen want to bring accountability to perpetrators of atrocities in Syria and Iraq. They’re going to need international human rights law for that. The Government wants to avoid International Criminal Court prosecutions of Americans for crimes committed in Afghanistan. They’re going to need international criminal law (and some State Department diplomacy) for that. U.S. officials will (likely) want to sanction North Korea for any number of reasons. They’re going to need international law for that, too. The list goes on and on.

Both formally and practically, international law and international human rights law always have been, and continue to be, critical to the achievement of any Administration’s foreign policy objectives. Moreover, they are essential to the President’s national security goals. As Scott Sullivan describes, human rights violations spark violence; violence sparks internal conflict and the radicalization of opposing groups; and internal conflict sparks refugee flows, which have recently caused widespread instability. If the Administration wishes to prevent terrorists from war-torn regions from sneaking into the U.S. disguised as refugees, the long-term solution doesn’t come from indiscriminate immigration bans or “heavy” vetting (whatever that means), but rather from strengthening respect for human rights in those countries. By defending human rights worldwide, the U.S. does not simply help unknown foreigners, but also secures the safety of its own citizens.

Recent events, however, suggest that the Trump Administration fundamentally misunderstands the role that international law must play in promoting its own goals. And apart from the raw human stakes, this is what makes the list of human rights failures listed above so scary. In neglecting human rights norms, the Administration is not only harming international human rights institutions and the individuals around the world who count on them for protection. It is also making people in the U.S. more vulnerable to violence. 

Thus, the Trump Administration’s actions over its first two months are not just an attack on human rights norms. And they’re not merely a rejection of international law. They’re also an assault on our national security and foreign policy. Two months in, the outlook for international human rights law in the Trump Era seems pretty bleak.

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A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

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Charlie Gerstein

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