Growing pushback from many parts of the world points to the need for rethinking our approach.
BY SETH D. KAPLAN
There is a growing backlash to human rights in many parts of the world. As Eastern and Southern states gain influence on the international stage, they display unease toward some aspects of the existing human rights agenda. Despite these dynamics, most human rights advocates continue to function as if little has changed over the past 20 years. The human rights project is infused with Western values and has long been dependent on Western power to project influence—and the result is that now, in the face of changed circumstances and new dynamics internationally, its actions risk undermining the very legitimacy of its cause.
The decline in human rights legitimacy takes many forms. The United Nations is increasingly unable to hold states such as Syria and China accountable for gross human rights violations. Freedom House reports that democracy, which is practically synonymous with human rights in the West, “is under assault and in retreat around the globe.” Its Freedom in the World 2020 report indicates that political rights and civil liberties have registered 14 consecutive years of decline. Meanwhile, foreign-funded civil society organizations that promote human rights are increasingly viewed suspiciously in countries around the world. In a 2014 Carnegie Endowment for International Peace report, Thomas Carothers and Saskia Brechenmacher note how this is true not only in authoritarian regimes such as Russia, Azerbaijan, Turkey, Sudan, Egypt and Venezuela, but also in democracies such as Mexico, Malaysia, Nigeria, Hungary and Israel—all of which have passed or are considering passing legislation regulating the sector.
When repressive regimes push back against human rights goals, their critiques are easy to dismiss. But when people sympathetic to the cause of human rights are expressing skepticism, it reflects something more fundamentally troubling. These critics do not necessarily disagree with the goals of today’s rules-based international system, but rather, as Brazilian academic Oliver Stuenkel writes in Post-Western World (2016), they take issue with the “operationalization of liberal norms” and the “implicit and explicit hierarchies of international institutions” that privilege Western countries.
This kind of feedback leads to a cycle whereby Western condemnation helps feed a negative reaction—even in partner countries—which leads to further condemnation, more reaction, and so on. Such a pattern is apparent in the relationship between the West and the Middle East and, to a lesser degree, parts of Asia. It has also seeped into the relationship with Africa as the latter has grown rapidly and become less dependent on Western largesse. This unhealthy dynamic holds back efforts to separate legitimate cultural and contextual concerns from criticisms that merely advance the interests of self-serving leaders and governments abroad. It weakens the overall power of the human rights idea by reducing its moral authority within many communities.
How did human rights—an idea once powerful enough to unify a vast range of people in struggles against totalitarianism and apartheid—become so divisive? A major factor, ironically, was the overweening dual ambition born of success: Rights advocates have broadened the scope of issues covered by human rights, and at the same time narrowed the room for differences in bringing those rights to life. In so doing, they misconstrue the original goals of human rights, most clearly embodied in the Universal Declaration of Human Rights, the foundation for much of the post-1945 rights project.
Mary Ann Glendon, Learned Hand Professor of Law at Harvard University and chair of the Commission on Unalienable Rights, and others have chronicled how the drafters were influenced by a combination of community-oriented and individualistic concepts that enabled them to gain support from a wide assortment of European, Middle Eastern, Latin American, Asian, communist, capitalist, developed and developing countries. The declaration’s framers believed they had adopted a pluralistic document that was flexible enough to respond to different needs in terms of emphasis and implementation, but was not malleable enough to permit any of the basic rights to be eclipsed or subordinated for the sake of others. Everyone—from West, East, North or South—could accept its tenets, and everyone could believe they were morally important.
How did human rights—an idea once powerful enough to unify a vast range of people in struggles against totalitarianism and apartheid—become so divisive?
The Universal Declaration of Human Rights does not present the specific rights as items to be isolated from the others and propagated on their own. Indeed, one of the surest ways to misconstrue—or misuse—human rights is to think that any particular right is absolute, or that all the diverse rights can ever wholly be in harmony with each other. For example, many post-conflict countries need to balance the need for reconciliation, a secure peace and economic development with the need for retribution for crimes committed; there is no universal map on how to achieve this—an overzealous attempt to accomplish the latter can easily undermine the former. In fact, every distinct right must have certain limitations and boundaries and exist within a constellation of other rights for it to have any real meaning. There is no clear blueprint for how to respond when rights conflict. Communities must balance the weight of claims of one right versus another before determining the best course of action.
Understanding why this flexibility was both necessary to achieve agreement and desirable is crucial to appreciating the vision of the drafters and the success of the UDHR over time. The advancement of human rights, after all, depends much more on moral authority than on legal commitments written on pieces of paper. Unless people around the world accept rights as morally binding, such that they become embedded within local values systems, they are unlikely to gain wide acceptance. Universal commitments must allow each culture to flourish as it might see fit. The drafters of the UDHR knew that human rights would only be realized when they were defended in each country “in the mind and the will of the people,” as Lebanese diplomat Charles Malik, one of the major actors on the drafting committee, put it.
The only exception to this flexibility in the UDHR is for a narrow core of “primary rights” that specifies strict restrictions on things like torture, enslavement, degrading punishment and discrimination. This suggests that although all rights in the UDHR are important and need to be upheld, there was universal agreement that a few have special priority and thus require more rigid enforcement in all contexts. This idea is echoed in the many subsequent human rights treaties that have a set of legally binding, nonderogable or emergency-proof rights.
The evolution of the rights discourse within the United States and other Western countries—alongside growing secularization and individualization—has prompted many of the growing disagreements over human rights. Whereas liberty was once thought to depend on a healthy body politic and a careful balance of rights and obligations—a modern understanding—since the 1960s, it has increasingly meant individual rights and freedom from constraints, a postmodern understanding.
The ascendence of individualism means that nonindividualistic values—such as those promoting communal duties or tied to religious belief—have been deemphasized. A one-size-fits-all approach—elevating individual autonomy and choice above all other values—has triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and interdependence of fundamental rights have also been forgotten. And the promotion of human rights has been tied to the promotion of democracy and free markets.
Meanwhile, the number of rights has risen steeply as various well-meaning special interest groups have sought to harness the moral authority of the human rights idea to their causes. According to the Freedom Rights Project, there are 64 human rights agreements under the auspices of either the United Nations or the Council of Europe, including 1,377 provisions (some of which may be technical rather than substantive). This makes it, as University of Pennsylvania President Amy Gutmann writes in Human Rights as Politics and Idolatry (2003), “far more difficult to achieve the broad intercultural assent to rights that an international human rights regime requires to be effective.”
The number of rights has risen steeply as various well-meaning special interest groups have sought to harness the moral authority of the human rights idea to their causes.
Yet as Jacob Mchangama and Guglielmo Verdirame, co-founders of the Freedom Rights Project, note with disappointment in Foreign Affairs: “Much of the human rights community has not only shied away from expressing qualms about rights proliferation, it has often led the process [of deemphasizing rights proliferation].” In addition to adding rights, activists have been selective in their promotion of rights, often emphasizing new or novel interpretations of rights. For example, human rights advocates often promote LGBT rights, though these rights do not appear in international agreements, while ignoring or downplaying the importance of religious freedom rights, which are included in international agreements.
These changes in focus were accompanied by significant shifts in ambition, especially after the end of the Cold War. As Secretary of State Michael Pompeo noted in a July 7, 2019, opinion piece in The Wall Street Journal, “Human-rights advocacy has lost its bearings and become more of an industry than a moral compass.” Western human rights organizations worked to enlarge the international legal infrastructure that supported their efforts, creating state-like institutions such as the International Criminal Court and doctrines such as the “Responsibility to Protect” (which obligates the international community to intervene in states to prevent genocide, war crimes, ethnic cleansing and crimes against humanity) without clearly limiting their scope and ensuring they would not be politicized. The assumption that Western—American—power would be sufficient to ensure these worked as advertised was unrealistic from the start—and certainly impossible today given the geopolitical landscape.
The U.S. State Department’s Commission on Unalienable Rights, established by Secretary of State Pompeo in 2019, offers an opportunity for the United States to reverse the declining legitimacy of the human rights idea. The commission is designed “not to discover new principles but to ground our discussion of human rights in America’s founding principles,” and to “generate a serious debate about human rights that extends across party lines and national borders,” as the Secretary explains in his WSJ article. The United States is uniquely positioned to restore the role of the Universal Declaration given its historic leadership as a driving force behind the declaration’s adoption and its still-leading role as promoter of human rights worldwide.
Accordingly, the United States should promote a return to basics: the handful of rights prioritized and given little scope for flexibility by the drafters of the declaration. The list, which could be augmented through negotiations, must include protections against genocide; slavery; torture; cruel, inhuman or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality or social origin; and protection for freedom of conscience and religion.
This would create a human rights framework that transcends political and cultural perspectives—one that could gain close to universal support because it would stick to what is needed to establish a just society in which every person could live with dignity. It would dampen much of the backlash that the human rights community has generated in many countries outside the West because it would appeal to a core set of values that are shared across groups and cultures and not seek to remake any group or part of the world in a Western image of society.
While some claim that this approach will make it difficult to check rights abuses, the reverse is true. A modest understanding of which rights can claim to be universal will encourage far greater scrutiny of those rights, from a far greater number of actors, especially within each society. The United States would end up taking a harder line on a few core issues everywhere—including with allies—but directly challenge the authority of fewer regimes than it does today, taking a more agnostic attitude to how they organize themselves and address myriad problems. In many places, this would also make cooperation to advance core rights more likely, because the focus would not be on regime change but on regime improvement.
As the world becomes more multipolar, and thus less determined by Western power, the need to take into account non-Western value systems, ideas and ways of organizing society will only grow. Whereas the human rights community provides little scope for incorporating such changes—because it is both uncompromisingly broad and rigid—the United States can offer a new framework that accepts the need for local adaptation and reserves universality to a select group of rights, offering a much better base to preserve the importance of human rights on the global stage going forward. The State Department’s Commission on Unalienable Rights offers just such an opportunity.