Vital Interests: Hurst, thanks for joining the Vital Interests Forum. A recent draft report by the State Department's Commission on Unalienable Rights has been widely criticized by human rights organizations and activists. You’ve studied and taught human rights law and your recent book, Rescuing Human Rights: A Radically Moderate Approach, addresses current concerns.  I would be interested in hearing your perspective on the report. 

Hurst Hannum: The Commission’s report was anticipated with dread by many human rights organizations, and I think that they were right to respond to it negatively. However, the report wasn't as bad as one might have thought. This was primarily because it contained numerous platitudes or generalities that, in anyone else's hands, would have sounded normal but, in the hands of this particular commission in the State Department, were quite surprising. 

The report went out of its way to emphasize the universality and indivisibility of rights, the principle that civil, political, economic, social and cultural rights were all equally important. It said in a couple of places that the universality of rights meant that you couldn't pick and choose from them, which is, of course, exactly, what Secretary of State Mike Pompeo did by emphasizing rights to property and freedom of religion.

It's fair to say that the report was certainly rambling. It would not have been acceptable as a thesis at the Fletcher School because of its internal inconsistencies. The language was so inconsistent, in fact, that parts of it could be cited by Joe Biden or another administration as supportive of human rights. In that respect, I think that the report was better than expected.

Nonetheless, the motivation behind the Unalienable Rights report was precisely to undermine any international global understanding of human rights. After supporting the indivisibility of rights, its authors then tried to excuse the U.S. rejection of economic rights by saying that, U.S. foreign policy has prioritized “economic and social well-being throughout the world as part of its development assistance." Because the report itself was so confused, critics focused on Secretary Pompeo, which is not entirely unfair. I think, in all honesty, that the Commission on Unalienable Rights and its report are likely to sink beneath the waves within the next couple of months. It is highly doubtful that any future administration will pay much attention to it.

VI: The title of the report focuses on “unalienable rights.” Pompeo would like human rights to be interpreted from an American constitutional point of view. How is that distinction different from a more universal approach to human rights?

Hurst Hannum: In some respects, this is a distinction that many presidents have made, whether they're in favor of or generally opposed to human rights. I don't think there has ever been an administration that has suggested, for instance, that international human rights law could  override provisions of the U.S. Constitution, which is true for most other countries as well. 

What we need to understand about human rights is that they were never intended to be enforced by a global court that could impose what are often very difficult decisions on individual countries. Under human rights law, every country has always retained a certain degree of discretion, a certain degree of flexibility, not in picking and choosing the rights, but rather in how they are interpreted.

Even within Europe, for instance, the European Court of Human Rights, which is the most important human rights body in Europe, has said that it can't identify a consensus or a European view of morality. Given that there are many rights, like free expression, that can be legitimately restricted on grounds of morality, the precise interpretation is going to vary from country to country -- you can't show certain things to children, you can't have sex in the middle of a public square, you can or cannot go topless at a public beach, et cetera. This flexibility is not unlimited, but it is real. Permitting countries to make reasonable decisions based on what ultimately are very different historical, cultural, political, or economic circumstances in which they find themselves is a strength of human rights, not a weakness.

The role of human rights in foreign policy is different from its role domestically, and we should not be surprised that countries promote their “favorite” rights rather than all rights. For example, the U.S. emphasizes freedom of expression. It has emphasized the rights of women and for quite some time paid particular attention to freedom of religion. It had emphasized LGBTQ rights in recent years, although not under the Trump administration.

We have consistently acted as though it's America first. While this sounds awful, in fact, it's the same thing that almost every other country does. Sweden -- which I always use in class as my example of the perfect country, even if it may not be -- for the last several years, has had an avowedly and officially recognized feminist foreign policy. There is certainly nothing wrong with that, but there is also nothing in human rights law that would suggest that equality for women is above everything else. It used to be the case that Cuba and China, for instance, emphasized economic and social rights because that's what they paid attention to. For a time, at least, both countries also did a reasonably good job in promoting those rights.

VI: In a critical letter from the human rights community to Secretary Pompeo and to Mary Ann Glennon, the chairwoman of this commission, objections were raised about how this report questions the legitimacy of the international human rights framework which was developed from the original UN Universal Declaration on Human Rights of 1948 and the subsequent nine conventions that further defined human rights norms.

It is not a new practice for the United States to choose what treaties they wanted to support or reject, is it?

Hurst Hannum: That's correct. It’s not only the Trump administration and Republican administrations that have expressed concerns about universal human rights norms. I think there are two issues. The first is that the U.S. is a very arrogant country and it's a very powerful country. Most powerful countries are arrogant. The U.S. tends to think of itself, as Ronald Reagan famously proclaimed, as a shining city on a hill, which everyone should emulate. This attitude, while unfortunate, is not unique to the United States

The U.S. compares itself to the former Soviet Union, now Russia, and to many other countries and says, "Look, we actually take these rights seriously." I think in all fairness that U.S. constitutional law and constitutional rights, although frequently ignored, are taken seriously by our courts, and at least we have often, if not consistently, struggled to try to make things better. This does not mean, however, that the United States is a model for the world in every respect.

The second problem with the United States is that its government doesn't work very well. We have a very unusual constitutional provision that requires that treaties must be ratified by two-thirds of the more conservative of the two branches of Congress - the Senate. That didn't used to be as much of a problem but, over the last couple of decades as politics have become much more polarized, it has been increasingly difficult to get almost any treaty adopted no matter how mundane.

Very few administrations have thought that it was worth the political capital that they would have to expend to push for ratification of treaties even if they could support them.   Combined with the arrogance of a great power, the view is often that there is little to be gained for the United States by ratifying some of these treaties. There also might be specific provisions in the treaties with which the U.S. disagrees.

One treaty that the U.S. has ratified, for instance, is one of the two major covenants on civil and political rights. Article 20 of the treaty prohibits advocacy of national, racial or religious hatred. Because the U.S. has an extremely broad interpretation of free expression, it specifically objected to this article and declared that it would not be bound by it. That is legitimate under international law, and it would be more honest if the US would enter such specific “reservations” to other treaties, rather than simply refusing to ratify them at all.

Some of the treaties, because they are global, have a much more liberal approach than do a majority of politicians in the Senate. For example, the convention on the elimination of discrimination against women has an expansive interpretation of women’s rights and calls for eliminating all laws and practices based on stereotyped roles for women and men.  For many people this seems perfectly reasonable. But given that the U.S. is, relatively speaking, more conservative than Western Europe, for instance, such pronouncements cause concerns. It is provisions like this that get under the skin of hardcore conservatives in this country. Although they are frequently not the most important elements of these treaties, they are enough to get them pushed to the side and make ratification politically impossible.

The important thing to remember is not that our focus on human rights changes from administration to administration; it is rather that human rights are consistently a part of U.S. foreign policy. We can certainly argue about the hypocrisy of U.S. practice, but the United States is still unusual in requiring, pursuant to various laws, that human rights be considered in the formulation of U.S. foreign policy. The EU and many of its members now also have foreign policies that include human rights, but few other countries in the world have adopted such a stance.

Still, no state can completely ignore human rights now, because rights do have political salience in the diplomatic world. That salience and legitimacy may have decreased somewhat in the last 10 or 15 years, but they remain a part of international relations. Unfortunately if human rights are used primarily to give a country a way to criticize its adversaries, no country is going to be particularly objective or consistent in the way it applies these norms.

VI: The other criticism of the report is how it elevated certain rights as being particularly important for the United States, these were freedom of religion and property rights. Another part of the report was dismissive of other rights specifically reproductive rights, affirmative action, and same-sex marriage, labeling them as socially divisive and causing political controversies. Should there be an American standard for acceptable human rights?

Hurst Hannum:  What the report states is that the rights to property and free expression were foundational to the founding fathers in the late 18th century. The report does not say that we should elevate those rights above all others, although that is exactly what Pompeo supports. But this does raise a fundamental issue about the ranking of rights that is much wider than the U.S. and the Commission on Unalienable Rights.

That issue, addressed throughout the report, is whether the world now has too many rights. The report criticizes rights proliferation, as I have done in some of my own writings. Most of the criticisms have come from people, like Secretary Pompeo, who have very little respect for rights and resent the fact that international norms exist that are beyond the control of the United States.

Contrary to Secretary Pompeo, I think that rights do have to evolve. The 1948 Universal Declaration of Human Rights was not handed down on golden tablets by a divine being. It was drafted by diplomats and politicians to express a consensus about the obligations that states should have to their own citizens. I think that the drafters did a pretty good job. The declaration was phrased in fairly general terms but nonetheless proclaimed widely accepted rights, such as the prohibition against torture, fair trial requirements, and the obligations on governments to promote and ensure health care, social security, and the right to housing. These are all very important, and other global treaties adopted under the auspices of the UN are also significant, such as those on racial discrimination, discrimination against women, children, and torture.

We're now in 2020, and the number of things that either have been proclaimed as rights by non-governmental organizations, civil society, governments, or academics is quite extraordinary. Currently, there are new treaties or declarations being drafted at the United Nations on a human right to a healthy environment, the rights of peasants, and the rights of elderly persons. The Chinese government has claimed, with respect to the two Olympics games that they had hosted, that it is a human right of China and the Chinese people to host these Olympics. An Ecuadorian Ambassador has claimed that Julian Assange, when he was still being given asylum at Ecuador’s  London embassy, had a right to sunbathe without being spied upon. 

The UN institutions that deal with rights are not immune from rights proliferation. Among the issues that the Human Rights Council, the primary UN institution that deals with human rights, has under consideration are human rights and mercenaries, human rights and toxic waste, human rights and albinism, and the need for an equitable international order. As the list keeps expanding, we have at least muddied the waters, I think, about what rights are truly universal.

Human rights are supposed to be rights that people enjoy no matter where they are in the world, what their status is, whether their country is rich or poor. Clearly, the implementation of those rights will vary, because they all require resources of one sort or another. However, as “universal” rights are applied to smaller and smaller groups or more and more particular issues, they begin to reflect political aspirations for change (many of which I personally would support), coupled with a feeling that change would be easier if we could just call these goals human rights.

One example is the quest for adoption by the UN of a declaration that there is a human right to a healthy environment. The problem is that little of that energy is doing any good whatsoever in helping us understand what to do about the environment or how to create the political will required to save the planet.

Human rights already deal with environmental issues in terms of the right to health and the right to life. If governments ignore environmental threats that are harming citizens in situations where they could do something about them, that is a violation of human rights. But the environment is so much more vast than people's health and people's lives. I think that making a healthy environment into a right that is, in theory, legally enforceable, is actually going to make it more difficult to engage in the broad ranging debates and disagreements about science and economics related to the environment. There are rights involved, but human rights cannot tell us how to meet the existential challenge of a deteriorating planet or what we should do, for example, to alleviate population dislocations due to the rising sea level. 

Another example is the alleged relationship between human rights and business. Now, for many years, demands have been made that business should behave responsibly, under the rubric of corporate social responsibility. I certainly favor holding businesses accountable for many of their actions, not just those that might indirectly affect rights.  That accountability can be sought through civil suits and simply enforcing the basic principle of tort law, which says that you can sue someone who injures you. Admittedly, given the size of many transnational corporations compared to many national governments, that is difficult to do. What has happened, however, is that by tying business to human rights, we have conflated binding international legal obligations on states with voluntary, often vague, statements by various associations of businesses, which are often designed more for public consumption than for action.

Business has no formal responsibility under any international law for any human rights violation. Business has nothing to do with many basic rights, such as the right to education, the right to healthcare, or ensuring that trials and elections are fair. Those who are promoting this connection assume that this is a good thing because we are talking about it. To the contrary, I would argue that it adds unnecessary confusion between what really are rights, as opposed to other business-related impacts that should be regulated, such as how to control large corporations or whether we can or should regulate the activities of  US-based corporations in other sovereign states that have their own sets of laws. 

Both the environment and ensuring accountability for business are important issues, but that doesn't mean that they are rights issues. The universality of human rights undermines claims for new rights that cannot rationally be extended to everyone in the world. The flexibility inherent in human rights allows countries to determine the outcome of difficult economic and social issues for themselves, so long as human rights criteria of non-discrimination and participation in decision-making are respected. 

VI: This overreaching and overselling of human rights feeds into the attitudes of authoritarian states which reject human rights based on individual rights. China, for example, views individual rights as jeopardizing the overall welfare of the state, maintaining that human rights should promote the welfare of the many, not just the few. Is this an acceptable attitude? 

Hurst Hannum: Such dishonest arguments are often raised by governments that want to shirk their responsibilities rather than make a good-faith attempt to balance the rights of the individual versus the rights of the larger community, a necessary balance that was foreseen in the earliest human rights instruments. If you look at almost any human right, - let's say free expression, for instance, or freedom of assembly - these rights can all be limited on the grounds that they unreasonably interfere with the rights and freedoms of others.

Now this is worded in an individual rights syntax, but what it also means is that these rights can be limited by the legitimate needs of the broader community. It is possible, in fact it is required, for governments to try to adopt a balance that's fair to both sides. The key is that you have to begin with the right itself. You can't just take the right away by using the excuse that, oh, other rights are more important.

That's what the Chinese have attempted to do with fair trial rights and freedom of expression rights. That's what the U.S. does with economic rights like housing, an adequate standard of living, health care, and social welfare. It's curious but not surprising that while the U.S. has formally ratified the Covenant on Civil and Political Rights, it has never ratified the Covenant on Economic, Social, and Cultural Rights. China is equally honest: they have only ratified the latter and not the former.

In some ways, you could say that both countries are being honest by saying, "Look, we don't accept these rights. Don't criticize us for it." However, today all countries, at least politically if not legally, are held accountable for a reasonable response to and a reasonable acceptance of all rights. 

The Chinese are still being criticized for persecution of the Uighers, the leaders in Myanmar for their treatment of the Rohingya, and the United States for the degree of poverty and homelessness in the richest country in the world. No one has been let off the hook by the United Nations or by most NGOs. One of the strongest weapons for human rights advocates is the hypocrisy of governments, because most of them have formally accepted, in one way or another, that people do have the right to freedom of expression or to practice their religion or to join a trade union, even while the same governments are limiting those rights to a degree that makes it impossible to enjoy them. Similarly, no government, whether it is elected or takes power through a coup, denies economic rights and says that its goal is to lower the standard of living of its population.

One of the things that people often forget is that international human rights norms have sometimes been a justification for countries to improve their human rights records. After Latin America got rid of its military dictatorships in the '70s and '80s, one of the first things many of the newly democratic countries did was to include specific human rights protections in their constitutions, as well as to ratify human rights treaties.

Latin America is still not a paradigm with respect for human rights, but it's certainly a lot better than it was. In many countries, there are people within the government who consider most human rights favorably. When they are dealing with colleagues who are uncomfortable with the idea of rights, they can say, "Look, why don't we make this change because we can claim that we're doing something good-- and it actually is a good thing for us, too."

The bottom line is that human rights are still important for almost every country. Both powerful and friendless states are criticized and encouraged to do better, although politics certainly still determines votes in the United Nations and other organizations where human rights are debated.

You would expect that autocratic leaders are not going to be very attentive to human rights and that's certainly the case. My own, perhaps overly optimistic, view is that in the next decade many of the newer nationalist, authoritarian governments will prove to be incapable of bringing anything worthwhile to their people. In one way or the other, either through mass protests or elections, more moderate voices will come to power that will begin to take rights and reason, as opposed to authoritarian nationalism, more seriously.

VI: Your book looks at the development, over the past decades, of human rights law. There is an internationally recognized legal regime of treaties and covenants that hold nations accountable for human rights violations. Can you expound on why human rights law is so important?

Hurst Hannum: I think that the prime benefit of having human rights as part of regular international law is that in this way we can easily define them. We do have treaties that have been formally ratified by states. Civil society advocates or even foreign diplomats don’t need to say, "This is what I think human rights are. Why don't you agree with me?" Instead, they can say, "Here is the law that you yourself have accepted. Nobody required you to do this, so we are only asking that you live up to the obligations to which you have freely agreed.” Of course, such an approach is not always successful, but understanding human rights as international law does help meet counter-arguments that human rights are purely political or in some way neocolonial.

At the same time, law is not the primary guide for human behavior. As we go about our daily lives, we make decisions based on peer pressure, the values of our family and friends, our religious or ethical or political beliefs, and many other considerations.  Following the law is not sufficient to make one a good person or to contribute meaningfully to society.

Similarly, human rights were not designed, in 1948 or subsequently, to provide answers to all the world's problems or to define what a good or a happy society should be. Human rights law is about governments and individuals and groups of individuals. It's not about whether you should be generous or tolerant or how egalitarian a society you should have. It’s not about whether or not you should disinherit your child because he or she marries someone of the same sex or the wrong religion or who has the wrong skin color. Those issues of personal behavior are incredibly important, but they cannot often be guided by something as distant as international law.

The Universal Declaration of Human Rights was initially a “standard of achievement” for the world, and it remains a standard that no country has achieved fully. Even as law, human rights cannot provide all of the answers to every global or domestic problem, but their protection is a necessary, but not sufficient, condition for societies to define their own version of happiness, taking into account their history, culture, politics, et cetera. 

Human rights provide the context for resolving disputes, for making good policy decisions, which by themselves are not a matter of rights but which do affect people’s daily lives, such as taxation policies, guns versus butter, long-term versus short-term economic planning, development, and all of the other challenges that every society faces every day, I think that recognizing not only the potential, but also the limits of human rights is the real key to knowing where they fit in the world.

VI: Isn't it also important for human rights to be recognized as international law because then it cannot be seen as being imposed by another country or regime? Rather, it evolved from long multilateral, multinational negotiations with input from governments but also NGOs and civil society groups to work out the best interpretation, the best application, and the best compliance to human rights norms that people throughout the world agreed on.

Hurst Hannum: I agree. It may be a partially legitimate criticism that, in 1948, the United Nations was a much smaller forum, and colonialism was still in place. By 1966, when the two basic treaties were adopted ,the vast majority of former colonies had become independent states. More importantly, since that time, these countries, be they dictators or democracies, north or south, big or little, have accepted UN human rights norms as being appropriate statements of what they aspire to achieve.

This doesn’t mean that these norms can’t change, but the objection to human rights as neocolonial or only reflecting Western European values simply isn’t persuasive. Unfortunately, it is also true that not many countries in the developing world or mid-level countries have given the public support to the concept of international human rights that they might. One exception to that statement might be Latin America, which is among the regions of the world that, at least in theory and diplomatically, have tended to be very supportive of human rights. 

If there's a bias inherent in human rights, it may be a bias towards individual rights. However, I think it is a sign not so much of Western influence, but simply the modernization of countries over the last century or so, including the migration of people  into cities, which has diminished the importance of many local communities. A similar process has occurred since decolonization, when vast colonial empires composed largely of small rural communities were becoming more urbanized. This is just a historical fact, not anything good or bad, but it does help explain the focus of human rights on the new power and obligations of government, rather than traditional communities.

But human rights are not solely concerned with individuals. Economic and social rights may be limited or interpreted in a way that promotes “the general welfare” of a society. It is the United States – in which some people claim that they have a human right not to wear a mask during the current pandemic --  that is the outlier, not the rest of the world. Such an attitude would be inconceivable in almost any other country, and it is certainly inconsistent with a proper understanding of international human rights.

Even though Africa and Asia may be much more communal in their social understanding of the way the world works, this doesn't mean that they find human rights irrelevant. Civil society has largely embraced the norms of human rights law, as a means of providing protection against repressive or otherwise unaccountable governments.

The one disadvantage to thinking of human rights as international law is because, like most of the rest of international law, very little of it is self executing. There are some regional human rights courts, but there is no global human rights court and no regional or global human rights sheriffs. The goal has always been to enter into dialogue with states, to encourage them to change, and to help them change. Thus, actual implementation of rights remains in the hands of domestic governments, and, unlike the reciprocity that underlies most international law, the beneficiaries of human rights treaties are the people within each state. Failure to guarantee human rights by one state does not justify violations in another, and the only real remedies are political pressure and political will. 

VI: We are coming to the end of our time. Thank you for a good conversation on human rights - how they developed over the past decades, what they mean for the world today, and how they will need to evolve to serve the future. From what we've talked about, it certainly seems that human rights are now firmly part of our modern consciousness and an important consideration in dialogues about social, economic, political, and cultural realities. It's not in its twilight, it's not going to disappear. Human rights just need to be understood for the proper role they play, to be implemented correctly, and to do what they are supposed to do which is protect people around the world so that they can live meaningful lives. Hopefully, that's what we can look forward to.

Hurst Hannum: I agree with you entirely. I hope that's the case. I hope that my colleagues who are human rights advocates will not become less reticent to admit that perhaps the way human rights are understood today needs some tweaking, some better understanding. Those who criticize human rights with the goal of improving them and making them more relevant should be listened to for insights on where common ground on universal human rights can be found.

Hurst Hannum, Emeritus Professor of International Law at the Fletcher School, Tufts University, has taught courses on international human rights law, minority rights, public international law, international organizations, and nationalism and ethnicity. His focus is on human rights and its role in the international legal and political order, including, in particular, issues of self-determination, minority rights, and conflict resolution. His scholarly work has been complemented by service as consultant/advisor to a number of intergovernmental and nongovernmental organizations, including the U.N. High Commissioner for Human Rights and Department of Political Affairs. He has been counsel in complaints before European, Inter-American, and U.N. human rights bodies. Professor Hannum was most recently a senior research at the Bonavero Institute of Human Rights, University of Oxford, and he also has taught at the University of Hong Kong, Central European University (Budapest), Harvard, American University, Georgia, and Virginia. His most recent book, Human Rights: A Radically Moderate Approach was published by Cambridge University Press in 2019.