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Argument

America the Unexceptional

Long a promoter of rights and democracy abroad, the United States would be wise to look within.

A protester holding a U.S. flag takes part an anti-racism demonstration in Barcelona
A protester holding a U.S. flag takes part an anti-racism demonstration in Barcelona on June 7. https://www.facebook.com/greta.matznergore/videos/10102841771698534/

Ever since its founding, the United States has presented itself as a shining city on a hill—a nation in which liberty and fundamental freedoms thrive and an example for the rest of the world.

It is a mythology refuted by American history. And today, killings of African Americans that continue with impunity, systemic racism across institutions of U.S. life, and official violence against Black Lives Matter protesters once again demonstrate the hollowness at the center of American exceptionalism.

Still, many embrace the image of an exemplary, exceptional America. Even those who see the fault in the metaphor of a shining city may argue that the United States has historically played a positive global role for human rights. After all, it helped build the postwar global human rights system, drawing in part on constitutional protections Americans enjoy. It led the negotiation of the United Nations Charter, which makes the pursuit of human rights a fundamental purpose of the global organization. Former U.S. first lady Eleanor Roosevelt chaired the U.N. committee that drafted the Universal Declaration of Human Rights in 1948. Human rights policy has been built into the structure of U.S. diplomacy since at least the administration of President Jimmy Carter, however inconsistently, if at all, some presidents have been committed to it.

Racism and white supremacy drove the American refusal to enforce human rights at home, and that legacy of hypocrisy shapes human rights policy today.

Yet even so, the phrase “human rights” in American policy has almost always referred to what others violate, and it rarely comes back to what the U.S. government is obligated to protect at home. The United States may use the language of human rights law to condemn official abuses against minorities worldwide, or violence against protesters in Venezuela, Hong Kong, Iran, and elsewhere, but it bristles when those same norms are deployed against it.

Despite its rhetoric and its occasional leadership, the United States has long had its foreign-policy foot inside the human rights system and its domestic one firmly outside. Treaties and other international obligations that it calls upon others to keep are not even enforceable within the United States itself.

If human rights are so important that the United States makes it an official feature of its diplomacy, why have Americans not applied it to their own government?

The answer is simple and well documented. Racism and white supremacy drove the American refusal to enforce human rights at home, and that legacy of hypocrisy shapes human rights policy today.

At the outset of the modern human rights movement, segregationist Southerners and their allies fought against U.S. engagement with the U.N. human rights system. They saw human rights as a threat to segregation, to its oppressive system of official racist violence, to the inequalities of Jim Crow. They worried, rightly, that the U.N. human rights bodies would, if they had the authority, put pressure on the United States to end its systemic racism.

As a result, when the United States ratified major human rights treaties on civil and political rights and racism, the Senate demanded that they not be applicable in U.S. courts absent further legislation, which senators knew would not be forthcoming. It’s true that the United States comes under periodic evaluation at the U.N. Human Rights Council and in the few treaties it has ratified, but such reviews hardly receive attention or have much impact domestically.

In the decades since, U.S. resistance to human rights has extended beyond its racist origins. Some argue that international human rights law has always been too ambiguous and too politicized to be implemented consistently by governments. The American right has taken to arguing that human rights treaties are an effort of global elites to undermine U.S. sovereignty. Indeed, this was the argument against the Convention on the Rights of Persons with Disabilities, a treaty negotiated by the administration of President George W. Bush that basically implemented U.S. law on a global scale.

The unwillingness of the United States to subject itself to the same obligations it demands of others extends beyond human rights law. It underlies the reluctance to ratify the Rome Statute for the International Criminal Court and the resistance to state-to-state dispute settlement at the International Court of Justice, the U.N.’s principal judicial body.

But racism came first, limiting America’s human rights engagement and providing support to despots around the world who resist evaluation of what they claim are essentially domestic matters.

The protests across the United States demand genuine accountability for police violence against African Americans and an end to racism in policing, education, and all the other structures of American society and governance. These calls must lead to specific changes in law, policy, and practice.

Still, rhetorical commitments won’t be enough. U.S. law and the tools of litigation have simply not protected black lives and promoted a fair and just society; they often have had the opposite effect. The United States has a system in which accountability for much abuse has been practically written out of the laws of the government. Police kill but are covered by immunity. Vigilantes “stand their ground” and get away with murder. Presidents and their advisors and lawyers authorize torture, and Americans move forward.

Human rights law can play a meaningful role as Americans dismantle the infrastructure that supports racism and impunity. Today’s protests should lead to a genuine and national commitment to human rights at home, a long-term effort to monitor and reinforce institutional change and protect all the rights that people enjoy: rights to nondiscrimination, to remedies for abuse and lawlessness, to space for protest and expression, to privacy, to due process, to economic rights, and to much else that human rights law guarantees.

First, the United States should establish an independent and permanent Human Rights Commission that can evaluate any legislation to ensure that it meets the global standards articulated by human rights bodies for decades. It could make recommendations about necessary change at local, state, and federal levels and propose and promote human rights policies and education across the United States. An independent human rights institution can also monitor implementation of all the legal change that must follow the protests of recent weeks. A national institution can initiate a network of similar institutions at local levels across the United States to ensure compliance of all public authorities with America’s human rights obligations.

Dozens of democratic countries, in all regions of the world, have well-established human rights institutions, with varying degrees of authority, success, and independence. For instance, France’s National Consultative Commission on Human Rights criticized recent hate speech legislation on grounds that it could lead to censorship, and yet the National Assembly still adopted it. Many other such bodies, as in Mexico, may evaluate individual claims of human rights violations.

Second, Congress should begin the process of implementing the treaties the United States has ratified as a matter of U.S. law, especially the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. (It has already done so for the Convention Against Torture.) Above all, that means ensuring that courts can entertain claims that arise under these treaties, and that individuals can hold the government accountable to human rights standards and enjoy the right to seek remedies available to them under international law, such as remedies in the face of police abuse.

Third, the United States should ratify all the treaties that it has so far refused, particularly those related to discrimination against women, children’s rights, migrants’ rights, and the rights of persons with disabilities. Most are already consistent with U.S. law, so the failure to ratify is really only a failure to submit to international oversight as other countries, including other democracies, already do.

Fourth, Americans easily speak the language of civil and political rights, but they have failed to articulate a shared vision for fundamental rights to work and living wages, health care, and education at home and abroad. The United States should also ratify the International Covenant on Economic, Social and Cultural Rights and adopt, as part of a human rights agenda, policies to protect against the unfairness, extreme poverty, and inhumane treatment caused by corruption, concentrations of unimaginable wealth, and capture of political processes at home and overseas.

Finally, only with a commitment to human rights at home can the United States truly be a global voice for human rights. In a fit of Trumpian immaturity, then-U.S. Ambassador to the U.N. Nikki Haley pulled the United States out of the U.N. Human Rights Council, the central human rights body of the U.N. system. As it builds its own infrastructure for human rights, the United States should also return to the council and move toward a constructive role in advocating for the human rights of people around the world, a voice against the authoritarianism that has taken root in so much of the world and the alternative, anti-rights vision promoted by China and others.

The Black Lives Matter protesters have demonstrated what the United States should be, the promise of becoming a shining city on a hill—a place in which government works for the people, a nation in which those who abuse law and lives are held accountable, a country that affirmatively dismantles and remedies racism and advocates equality. Dismantling the racist origins of U.S. human rights policy should be a part of that agenda.

Law and policy must change to meet these demands. Human rights can support and sustain it.

David Kaye is a law professor at the University of California Irvine and the U.N. special rapporteur on freedom of opinion and expression. Twitter: @davidakaye

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