Brexit, Trump, and the human rights fallacy

That the 2018 Rule of Law Index shows diminishing human rights in almost two thirds of the 113 countries surveyed reflects the fact that for decades states at the forefront of the so-called liberal international order have failed to back their nominal support for human rights with efforts to enshrine such rights through respect for rule of law internationally.

The most high-profile success story of supranational human rights is the EU. All its contracting states are subject to the jurisdiction of the European Court of Human Rights, set up in 1959, to which any individual or group can apply if they believe their rights as set out under the European Convention of Human Rights or its protocols have been breached.

• The Justice Gap has been working on the World Justice Project’s Rule of Law Index in conjunction with The Guardian’s Inequality Project. You read our reports here and here.

However, the populist surge across the continent has put such norms under huge strain. Most notably, in the wake of the UK’s vote to leave the European Union, human rights are seen as European interference rather than a device intended to uphold the rights of the individual and check the power of states in order to prevent another devastating war on the continent – this, despite the fact that one of the principal figures involved in the post-second world war drafting of the European Convention on Human Rights was British Conservative MP and lawyer Sir David Maxwell-Fyfe.

This attitude pervades the highest level of decision-making. Suella Fernandes, who was appointed as a minister to the UK’s Brexit department last month, had written late last year that the EU Charter of Fundamental Rights should not be included in the EU Withdrawal Bill because “lawyers will love the extra layers of rights and the fees that they bring, and it’s also a core part of the Brussels project too.”

Such thinking is starting to have a tangible effect on UK law. The provisions of the ECHR remain enshrined in law thanks to the under-siege Human Rights Act. The UK government, however, recently won a vote in the House of Commons stipulating that the Charter, which is slightly broader in scope than the HRA, would not remain a part of UK law after the UK’s withdrawal from the EU.

Elsewhere in the EU, member states are putting the institutions designed to safeguard rule of law and human rights under pressure. The Polish state has attempted to bring the judiciary under its direct control – this saw it fall substantially on the Rule of Law index.

Much of this reversal can be linked to political developments across the Atlantic. US President Trump has largely been criticised by parts of the American media apparently in favour of a liberal, rules-based approach to international relations. The New York Times, for instance, recently published a comment piece stating that Mr Trump has ‘transformed the world’s view of the United States from a reliable anchor of the liberal, rules-based international order into something more inward-looking and unpredictable’, calling it a ‘seminal change’ from the past 70 years of American policy. The New Yorker wrote that since the second world war, ‘the United States has advocated an international order based on a free press and judiciary, human rights, free trade, and protection of the environment’.

However, polls have shown that outside the US the country is in fact seen as one of the greatest threats to world peace, rather than a bastion of the international order.

While Trump’s recent Twitter backing of Iranian protesters’ human rights appeared a surprising change of heart considering his domestic policy, it in fact highlights how successive US administrations have used the rights of oppressed groups to support their foreign policy, while failing to back these rights with support for supranational legal norms that would enshrine such rights in law, unacknowledged by much of ‘liberal’ America.

Examples of violations of human rights or international humanitarian law by the United States since the second world war abound. More significant is the country’s refusal to be bound by international treaties and initiatives that would hold it and its citizens accountable for such violations. The US, for example, is not a participant in the International Criminal Court. Furthermore, it passed a law in 2002 – shortly before the Iraq War – known as the ‘Hague Invasion Act’, which authorises the use of military force in relation to any American being held by the court in The Hague, and provides for the withdrawal of US assistance to any country ratifying the ICC treaty.

Similarly, the US has failed to ratify the 2014 Arms Trade Treaty, despite its signature by then-US secretary of state John Kerry in 2013. This legislation was designed to ensure that weapons are not sold to perpetrators of state-level human rights abuses.

The upshot of the US’s failure to lead, or indeed lend any support to, initiatives that would enshrine human rights in law at the expense of a degree of sovereignty is that it devalues those initiatives around the world: rights are not seen as a norm but an extraordinary benefit.

The rise in populism in the US and the EU, demonstrated by the election of President Trump and the UK’s vote to leave the EU, has emboldened authoritarian regimes around the world to dispense with any lip service towards human rights. Until there is a concerted international effort to enshrine human rights in law, such rights will continue to be subject to the will of politics and politicians, rather than the other way around.

This article was first published on February 5, 2018