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1 - Populist Threats to the International Human Rights System

Published online by Cambridge University Press:  22 April 2020

Gerald L. Neuman
Affiliation:
Harvard Law School, Massachusetts

Summary

This chapter frames the discussion that follows by examining the concept of populism, which is debated among political scientists, and the negative effects that populism may produce on internationally recognized human rights. The chapter emphasizes an understanding of populism as a form of politics that employs an exclusionary notion of the people as opposed to disfavored groups that are unworthy and that purports to rule on behalf of the people, whose will should not be constrained. The chapter describes both internal and external effects of populists' rise to power. Domestically, populist governance threatens the human rights of the excluded group, but also poses danger for members of the majority, as leaders seek to entrench themselves in power and undermine checks. Externally, the influence of populism on foreign policy reduces support for the international human rights regime, in a manner that has become increasingly problematic as populists gain power in more countries that previously played key roles in maintaining it.

Type
Chapter
Information
Human Rights in a Time of Populism
Challenges and Responses
, pp. 1 - 19
Publisher: Cambridge University Press
Print publication year: 2020

I Introduction

Since 2016, world politics has been unsettled by a series of electoral successes of right-wing populist parties, leaders, and movements. The Brexit vote in the United Kingdom was followed by such events as the election of Donald Trump in the United States of America, near-wins in the Netherlands and Austria, the rapid rise of Alternativ für Deutschland, the joint rule of two populist parties in Italy, and the victory of Jair Bolsonaro in Brazil. In France, Marine Le Pen outpolled both traditional candidates and was defeated as President only by the independent candidate Emmanuel Macron.

This unexpected series of developments adds greater urgency to the study of populism and its effect on human rights, already exemplified in countries such as Hungary, Poland, Turkey, and the Philippines, and in recurrent periods of both left-wing and right-wing populism in Latin America. The growing strength of populism in established democracies that have previously provided key support to the international human rights regime poses special concern: it not only endangers human rights within those countries’ own borders, but also threatens to weaken the international system for protecting human rights abroad.

This chapter frames the discussion that follows by examining the concept of populism, which is debated among political scientists. While considering a range of definitions, the chapter favors the “ideational approach,” which understands populism as employing an exclusionary notion of the people – the “real people,” as opposed to disfavored groups that are unworthy – and that purports to rule on behalf of the “real people,” whose will should not be constrained. The chapter then sketches the negative effects that populism may produce on internationally recognized human rights, both internally and through its influence on foreign policy.

II Populism in Theory

In this chapter, I will focus on one common framing of populism employed by political scientists, the ideational approach. In Jan-Werner Müller’s phrasing, populism is a “a way of perceiving the political world that sets a morally pure and fully unified … people against elites who are deemed corrupt or in some other way morally inferior.”Footnote 1 Cas Mudde has defined populism in similar terms as “an ideology that considers society to be ultimately separated into two homogenous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.”Footnote 2 These efforts to capture the features of populism differ somewhat, but they share important common features: populists are anti-pluralist; populists have an exclusionary notion of the “real people” that they contrast with morally reprehensible elites; and populists claim to speak for the will of the “real people,” which should not be constrained. This conception of populism is compatible with a range of policy orientations, depending on the values it attributes to “the people” and to the despised elites. It recognizes both left-wing and right-wing populists, and others who may be harder to place on a left/right spectrum. But not everyone who criticizes an elite or invokes “the people” is a populist.

Although these authors conceptualize populism in terms of antagonism to elites, they also make clear that there may be other segments of the population that populists exclude from the real “people.” Müller has explained, “Right-wing populists also typically claim to discern a symbiotic relationship between an elite that does not truly belong and marginal groups that are also distinct from the people. In the twentieth-century United States, these groups were usually liberal elites on the one hand and racial minorities on the other.”Footnote 3 Mudde’s application of his definition to xenophobic parties shows that their populism rejects both mainstream politicians and non-native groups that these politicians are accused of unduly favoring.Footnote 4

The ideational approach differs from other framings of populism, for example, as an opportunistic strategy pursued by particular leaders, or as a matter of performance or political style. Some political scientists define populism as the electoral strategy by which a personalistic leader asserts a direct, unmediated relationship with the people in order to achieve or exercise power.Footnote 5 This strategic approach considers populism as a method employed by particular leaders, not as a characteristic of parties, unlike the ideational approach, which applies to both individuals and groups. Other authors define populism as a form of rhetoric, communicating an identification with the people, through symbolically freighted vocabulary or “low” cultural style or both. The rhetorical approach treats the populist character of a speaker as a matter of degree rather than as a binary attribute; most politicians in a democracy invoke the people and perform a “low” cultural style, at least some of the time.

A school of political thinkers on the left, following Ernesto Laclau and Chantal Mouffe, has theorized populist mobilization as a discursive method necessary for constructing a “people” unified in antagonism to the elites in power in order to bring about transformational change.Footnote 6 Whether such a transformation can develop into a stable, rights-protecting democracy, however, is disputed.Footnote 7 Nadia Urbinati has argued in critiquing Laclau that it is important to distinguish between social movements employing populist rhetoric, which may contribute to democratic debate, and populist movements seeking to exercise state power, which suppress pluralism once they succeed.Footnote 8

The ideational approach also contrasts with other uses of the term populism. Some thinkers proudly claim the populist label for a pluralistic, participatory empowerment of the full electorate, consistent with equal rights for all.Footnote 9 Other authors, especially economists, refer to a category of economic populism, generally involving redistributive, protectionist, or fiscal policies that they consider unwise.Footnote 10 There have indeed been populists in the ideational sense who favor certain economic policies of that kind, but also pluralists who strongly respect existing institutional constraints. Indeed, leading institutions in the international human rights regime favor constraining economic policies by social rights in a manner that many economists would condemn as populist in their own professional sense.Footnote 11 Finally, some observers have criticized the term “populist” as a generalized term of opprobrium that members of the establishment apply too easily to disruptive rivals, rather than a word with determinate content.Footnote 12

Taken together, these disagreements call for some caution in drawing conclusions from the literature on populism. Academics diverge on what populism consists in, and on who counts as a populist. I will argue in Chapter 11 that in the face of this uncertainty, human rights bodies should not treat populism as an operative legal concept, but should rather derive heuristic benefit from observations of populists’ actions.

Without attempting to resolve disputes about which definition best captures the historical range of populists, or distinguishes current populists from nonpopulists, I will explain my own preference for the ideational approach in the context of this book. First, the ideational approach emphasizes that such populists consistently invoke the people in an anti-pluralist manner. Second, the ideational approach emphasizes the populists’ claim to implement the people’s will without legal or institutional constraint. Third, the ideational approach applies both to personalistic leaders and less tightly led parties. These features make the ideational understanding of populism particularly useful in understanding the human rights challenges of the present moment. If that means that I will be focusing on a subcategory of populism, then I accept the need for an appropriate caveat to that effect.

Perhaps the relevant category should be called “exclusionary populism.” Professors Mudde and Rovira Kaltwasser, proponents of the ideational approach, have contrasted contemporary forms of populism in Europe and Latin America, and shown how European populists are often hostile to vulnerable ethnic groups and Latin American populists offer empowerment to vulnerable economic classes. Their study described the Europeans as exclusionary populists and the Latin Americans as inclusionary populists, while also observing that all populists are inclusive toward some and exclusionary toward others.Footnote 13 That duality is inherent in their ideational definition, under which populists divide society into two antagonistic groups, the real people and their enemies. For that reason, it may be worthwhile to call all populists under the ideational approach exclusionary populists, even if Mudde and Rovira Kaltwasser would consider that this usage renders the word “exclusionary” redundant.

Political scientists have made varied attempts to explore the causes of populism.Footnote 14 For that purpose it should be kept in mind that different factors may be operative in different countries and at different periods. Moreover, studies may presuppose different definitions or subcategories of populism. Some scholars see populist politics as appealing to voters whose identities have been destabilized by modernization or globalization. Other scholars also emphasize globalization but understand populism as a rational reaction by voters who suffer economic harm from globalization. Some authors explain populism as a consequence of failures of democratic governance, as in Latin American states where extreme corruption diverts the established parties from serving the basic needs of the citizenry, or in European states where convergence among parties offers too narrow a range of policy choices to voters. Pippa Norris and Ronald Inglehart argue that the current success of authoritarian populists reflects a cultural backlash produced by structural changes in economics, politics, and society.Footnote 15 Noam Gidron and Peter Hall provide evidence of social status anxiety among supporters of ideational populism in European democracies, where economic and cultural changes have decreased the subjective social status of less educated men.Footnote 16 Richard Heydarian emphasizes in Chapter 7 that different causes operate in emerging market democracies, where despite economic growth weak institutions have been unable to meet the rising expectations of the middle classes.Footnote 17

It should be noted that some of the factors identified here involve governments that fail to serve the human rights of their population. Other factors, however, concern cultural backlash that includes the negative reaction of some citizens to improvements in the human rights of others, possibly racial minorities or women.Footnote 18 These types of causes may operate separately, or conjointly – as when majority group members whose economic and social rights are neglected resent attention to minority groups that may be even more disadvantaged.

The actual or perceived role of international human rights institutions in situations of backlash may vary. In some instances, populists recognize the institutions as responsible for a change in government policy, and object explicitly to their influence. In other cases, populist agitation focuses on the local change without attributing it to external institutions.

III Human Rights Consequences of Exclusionary Populism

This section describes and illustrates some of the dangers that exclusionary populism poses to human rights, and to the international system for protecting human rights. Two points deserve emphasis at the outset. First, I do not claim that these dangers are unique to populist governments. Racist governments need not be populist, for example, and fully authoritarian governments may attack freedom of expression more thoroughly than populist governments do. I would not characterize the present governments of China, North Korea, Saudi Arabia, or Russia as populist.Footnote 19 Some of the international risks that populism creates are intensified when populist governments make common cause with autocrats. Second, most of the facts mentioned in this section are not intended as evidence that particular leaders or governments are populist but rather assume that they have been correctly characterized as populist, and describe some of their actions.

The exclusionary aspects of populism threaten human rights in a variety of ways. Some of these risks already materialize before populists attain public office. Populist incitement may lead to private discrimination and violence. Once populist movements attract substantial electoral support, established parties may borrow versions of their policy proposals in order to lessen the competition.

The risks multiply once populists come to power and control governmental authority and resources. Most fundamentally, the combination of a narrowed definition of the people with the unconstrained implementation of what is claimed to be the will of the people poses dangers to the rights of those in the excluded group. The potential victims may belong to formerly powerful elites, or to vulnerable minorities who the populists think received better treatment than they deserve. The scope of the threat, to equality, economic rights, liberties, fair trial, or even life, will depend on the particular local situation.

The dangers are not limited, however, to the social groups initially targeted by the populists. Once in power, populism risks tipping over into authoritarianism. Political scientists have emphasized the tendency of populist leaders to claim that only they represent the popular will, and to deny the legitimacy of any opposition. Thus the category of enemies of the people may expand to encompass former allies, dissenters, and critics, with resulting threats to their rights. Populists often try to entrench themselves in power, dismantling legal guarantees of fair electoral competition, and disrespecting the political rights of everyone, including their own constituency. They also express impatience with institutional checks and balances, and may seek to take over, replace or abolish independent components of government, such as the judiciary and other watchdog agencies. Meanwhile, populists may exploit their power to enrich themselves and their major supporters, neglecting the needs and rights of the people they purport to represent.

Nonetheless, populists sometimes employ the language of individual rights. Populists may sincerely believe that they are doing more than prior governments have done to vindicate rights of their voters – social rights of the poor, property rights of the middle class, free speech rights of the intolerant, or the religious rights of the majority, for example. And in some cases they may be correct. From a human rights perspective, however, the allegiance of populists to rights is generally selective and defeasible. The populist favors some rights of some people, and may cease to favor them when they interfere with the populist’s other preferences. Moreover, rather than implementing genuine social rights, populist governments may distribute benefits to the poor on a discretionary basis, requiring personal political loyalty in return.Footnote 20

When populists threaten the rights of those they govern, they put themselves in conflict with international human rights institutions. The contradiction between the populist understanding of the general will and the requirements of the human rights regime may itself provide a subject of populist agitation. Condemnation of the international regime may already have been an element of the populist program before they came to power, as with the Euroskeptics, or the conflict may begin later, after the international institutions criticize the populists’ projects or their methods of governing, as when the International Criminal Court began to examine Rodrigo Duterte’s sanguinary drug enforcement in The Philippines. The judges or personnel of the international institution, and human rights advocates relying on the institution, may then be identified as yet another corrupt elite.

Populists may reject international treaty obligations as inconsistent with national sovereignty, regardless of the fact that the treaties became binding through the consent of prior governments. They may dismiss the consent as coerced, or as a betrayal of the people by corrupt or disloyal politicians. They may portray the treaties as leading to government by foreigners, and thus objectionable in principle, or to government by a particularly despised category of foreigners. The populist strategy may then involve ad hoc defiance of particular rulings, or broader efforts to insulate national policy from international interference. Using the United Kingdom as an example, opposition to implementing European Court of Human Rights judgments on prisoners’ voting rights illustrates ad hoc defiance;Footnote 21 calls to repeal the UK Human Rights Act in order to prevent national judges from enforcing Strasbourg judgments embody one broader strategy, and proposals to denounce the European Convention on Human Rights altogether offer another.Footnote 22 Some populist governments have indeed withdrawn from treaties that authorize scrutiny by international bodies.Footnote 23 Venezuela under Hugo Chávez denounced the American Convention on Human Rights in 2012, thereby disabling future oversight by the Inter-American Court of Human Rights, and then his successor Nicolás Maduro resigned from the Organization of American States altogether in 2017, seeking to avoid the competence of both the Inter-American Commission on Human Rights and OAS political bodies.Footnote 24 The Philippines notified the International Criminal Court that it was denouncing the Rome Statute after the Prosecutor opened a preliminary examination regarding Duterte’s extrajudicial killings.Footnote 25

Nonetheless, populist regimes may be willing to use human rights mechanisms to serve their own goals, either as allies against domestic opponents or in support of their foreign policy positions. For example, Bolivia sought and received the help of the OAS under the Inter-American Democratic Charter in 2008 when Evo Morales faced resistance to his proposed constitutional reforms.Footnote 26 In 2016, Ecuador requested an advisory opinion from the Inter-American Court of Human Rights to support it in disputes with the United Kingdom and the United States over its effort to provide asylum for Julian Assange.Footnote 27 The right-populist Trump administration has repeatedly sought to invoke the Inter-American Democratic Charter against left-populist Venezuela, and it promoted country-specific critical resolutions and mechanisms while it was a member of the Human Rights Council.

Populist governments also have effects on rights outside their borders. Some studies have concluded that there is no one typical populist foreign policy – populists may be inward-focused and pacifist, or assertive and interventionist, depending on their ideologies and situations.Footnote 28 In recent years, however, certain populist governments have contributed to the spread of populism by assisting like-minded populists in other countries. On the left, Hugo Chávez famously used Venezuela’s oil wealth to assist populists in other Latin American countries.Footnote 29 On the right, Viktor Orbán of Hungary has openly campaigned for populist candidates in nearby countries such as Slovenia and North Macedonia,Footnote 30 and has reportedly channeled them financial support.Footnote 31

Venezuela also created rival forms of regional cooperation to compete with those it rejected.Footnote 32 With Cuba, it founded the Bolivarian Alliance for the Peoples of Our America (ALBA) as a vehicle for economic cooperation and development, and the Union of South American Nations (UNASUR) as a substitute for the OAS from which the United States would be excluded. However, as mismanagement and corruption and the fall in oil prices produced the collapse of the Venezuelan economy, these initiatives have withered.

Instead of withdrawing from a human rights mechanism in order to avoid its scrutiny, a populist government may remain in the system and make efforts to undermine or obstruct it. When successful, the government’s effort has effects that impair human rights in other countries as well. A populist government may work actively to undermine the mechanism, alone or with allies, or it may passively fail to resist such efforts by other populist governments or fully autocratic states.

In Latin America, left-populist governments led by Venezuela, Bolivia, and Ecuador (under Rafael Correa) have protected each other from OAS sanctions for anti-democratic practices.Footnote 33 They have sought to impede the Inter-American Commission’s Special Rapporteur on Freedom of Expression, and to constrict the funding of the Inter-American Commission and the Inter-American Court.Footnote 34 They have sought the return of Cuba to the OAS without any human rights conditionality. At the United Nations, Bolivia, Nicaragua, and Venezuela have joined with Russia and China in attempts to weaken the global treaty body system.Footnote 35

The role of populist members who remain in the system has become increasingly problematic as populists gain power within key supporters of the international human rights regime. Prominent examples include the United States and the European Union.

Countries may decrease their financial support to international human rights institutions, either for the deliberate purpose of weakening them or merely because they prefer to reallocate the funds to other purposes. The budgets of human rights institutions often include portions that are collectively determined by a sponsoring organization, such as the United Nations, the Council of Europe, or the OAS, and portions that are funded by the voluntary contributions of individual states or organizations.Footnote 36 Populist governments may seek to reduce the collectively set budget, or may withhold their own legally owed dues or voluntary contributions.

Countries may seek to change the outputs of international human rights institutions directly or indirectly. In political bodies where governments hold seats as such, like the General Assembly and the Human Rights Council, populist governments may join efforts to redefine human rights standards to decrease the level of protection. To the extent that the political body takes ad hoc positions on severe human rights situations in particular countries, populist governments may help block criticism, or to abandon the practice of adopting country-specific resolutions. Alternatively, they may weaken the enforcement of existing standards by modifying the procedures of the political body itself or of more independent expert bodies that it oversees. Some governments have also proposed forbidding human rights institutions to receive voluntary contributions, in order to limit their activities.

The European Union deserves separate attention here as a different kind of regional organization that maintains an active human rights policy outside its own region.Footnote 37 The EU engages in human rights promotion, monitoring, and diplomatic pressure. It participates in election observation; it grants development assistance, with varying forms of human rights conditionality attached; it provides financial support to human rights institutions at the global level and in other regions, while playing a supportive role within UN political bodies; and it supports particular human rights defenders. To be sure, EU foreign policy already weighs human rights considerations with other factors, but the increasing strength of exclusionary populists in EU member states threatens to change that balance.

The spread of populism in Europe has weakened the European Union’s capacity for making its external contributions. The populist-fueled Brexit referendum has confronted the EU with the loss of an economically and diplomatically important member with a strong rule of law tradition. Although the terms of UK withdrawal are uncertain at this writing, and the character of post-Brexit cooperation between the UK and the EU is difficult to predict, Brexit is likely to damage both sides economically and to decrease their diplomatic leverage in other regions. The volume of EU assistance and the direction of its flow may change; the negotiation of a seven-year EU budget plan for 2021–2027 has included a restructuring of external assistance.Footnote 38 In the face of demands for more spending within EU borders, and less external spending that does not benefit EU members, proposals would allocate a larger proportion of aid to discouraging migration from Eastern neighbors and Africa.

The ability of populist governments to achieve weakening effects within international organizations depends in part on the voting rules or conventions that control particular actions, and on the number of populist governments present and the other allies they can muster. (In some organizations with broad membership, collaboration between populists and governments of fully autocratic states becomes relevant.) When populists are in the minority, differences between simple majority voting, qualified majority (supermajority) voting, consensus practices and unanimity/veto rules influence the opportunity for the populists to block policies they oppose. The rules may enable a populist government to veto criticism or sanctions against itself, as the United States can in the UN Security Council,Footnote 39 and even when the government in question is ineligible to vote on its own case, as in some European Union procedures, a second populist government may wield the veto for its benefit.

Turning to the United States of America, the unprecedented ascension of the egregiously unqualified Donald Trump may have had many causes, but populist appeals formed a central feature of his campaign, and have continued on an essentially daily basis. As Ronald Inglehart and Pippa Norris observed, “Trump’s rhetoric stimulated racial resentment, intolerance of multiculturalism, nationalistic isolationism and belligerence, nostalgia for past glories, mistrust of outsiders, sexism, the appeal of tough leadership, attack-dog politics, and racial and anti-Muslim animosity.”Footnote 40 The threats that the Trump administration poses to human rights within the United States have received widespread attention, often expressed in terms of subversion of democracy and US constitutional principles.Footnote 41 Some of the danger signs are new – earlier Presidents have not condoned neo-Nazis – while others involve the deepening of prior trends of political polarization. This book, however, will not concentrate on the local effects, but on the impact of the Trump presidency on the broader human rights system.

As Stephen Pomper and Daniel Levine-Spound explain in Chapter 2, the current situation should not be contrasted with an imaginary golden age in which human rights norms provided the sole consideration in US foreign policy. Moreover, the United States has largely emphasized civil and political rights rather than the full range embraced by the international human rights system. Nonetheless, Trump’s indifference to human rights and admiration for autocrats presents new dangers.

Trump began his term with a populist speech, reportedly written by the white nationalist ideologue Stephen Bannon and his longtime collaborator Stephen Miller.Footnote 42 After thanking the former Presidents in attendance, he dismissed them with the typical populist claim that his inauguration, and only his, gave power back to the people. Prior administrations of whatever party benefitted a small political class, but he would protect the people. He announced a new vision: “From this day forward it’s going to be America First – America First.” Every decision in foreign policy would be made to benefit Americans. He would “bring back our borders,” targeting both trade and immigration. The United States would seek friendship with other nations, but “with the understanding that it is the right of all nations to put their own interests first.” The United States would “not seek to impose our way of life on anyone.”

In May 2017 the new Secretary of State, former Exxon executive Rex Tillerson, gave a speech to his employees describing how an “America first” foreign policy should be conducted.Footnote 43 He explained that the priority was to advance US security interests and economic interests, but that there would sometimes be room for promoting “our values,” where that did not impair security and economic goals. He referred to “our values,” and contrasted them with values that other societies might hold – the speech exhibited no awareness that there might be universal values in international law, and never mentioned human rights, or even international law. As Stephen Pomper and Daniel Levine-Spound point out, a certain amount of low-level human rights diplomacy did continue in Tillerson’s department, and the United States still deploys high profile human rights rhetoric against foreign governments that it has other reasons to oppose, such as Iran and (at times) North Korea.

Trump fired the pragmatic Tillerson in March 2018, replacing him with then-CIA director Mike Pompeo, and installed the notorious anti-internationalist John Bolton as National Security Adviser. Pompeo joined UN Ambassador Nikki Haley in announcing the United States’s withdrawal from the UN Human Rights Council in June 2018.Footnote 44 The most salient reason for the withdrawal was probably the Council’s refusal to end its disproportionate emphasis on Israel and the Occupied Palestinian Territories. But evidently the Trump administration did not care enough about the positive contributions they could make by remaining on the Council, where the Obama administration had played an affirmative role. The US absence will strengthen the hand of Council members that prefer vague thematic resolutions and mandates and resist inquiries into severe violations in particular countries. It also makes the effectiveness of the Council even more dependent on the European Union at a time when the stability of the EU is itself in question. Of course, US absence or presence is not the sole concern; it is the loss of engaged and constructive US participation that matters.

In September 2018, Trump addressed the General Assembly for the second time, and once more emphasized that the United States would insist upon its own sovereignty and self-interest.Footnote 45 He encouraged other nations to do the same, praising India, Saudi Arabia, and Poland, and describing Benjamin Netanyahu’s Israel as a thriving democracy. He condemned “global governance” in general, and particular organizations that did not sufficiently serve US interests. “America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.” He expressed the intention to reduce US financial support for the United Nations, and to redirect more of it from the general budget to voluntary contributions for specific programs that the United States favors. A few weeks earlier, the United States had cut off all its funding for the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA).

The speech to the General Assembly also emphasized “threats to sovereignty from uncontrolled migration,” and rebuffed the UN project to negotiate soft law principles on humane migration policy in a “global compact.”Footnote 46 Xenophobic agitation has been one of Trump’s signature methods, targeting nonwhite and Muslim immigrants especially. His administration has repeatedly tested the limits of its authority in measures against undocumented immigrants, Muslims, refugees and children, and has denounced legally required family reunification as destructive “chain migration.” Trump’s successive travel bans disrupted international efforts toward burden-sharing for Syrian refugees, and encouraged Eastern European populists who were defying the minimal quotas adopted by the European Union.

In international environmental law – not usually framed in human rights law terms, but with clear human rights consequencesFootnote 47 – the United States now refuses to honor commitments to slow climate change. Trump formally announced the intention of withdrawing from the Paris Climate Change Agreement as soon as the terms of the agreement permit. In the meantime, federal agencies have been dismantling environmental regulations, suppressing discussion of climate change in government reports and websites, and degrading the government’s capacity to analyze the issue scientifically.Footnote 48

The accumulation of harm from US words and deeds goes beyond the specific injuries to individuals, and threatens systematic damage to the international system for protection of human rights. Some of the harms may persist only so long as Trump remains in office, while others may prove difficult or impossible for more enlightened successors to reverse.

IV Conclusion

Exclusionary forms of populism, such as those described by the ideational approach, present numerous dangers for human rights and the international human rights system. Within their own societies the narrow conception of the people, and the rejection of constraints on the enforcement of their will, threaten the rights of the excluded groups, and populists’ hostility toward critics and competitors threatens the rights of their own supporters. Looking outward, these attitudes generate conflict with international bodies that seek to protect those rights.

Populists often disdain external obligations that would limit their freedom of action. They may contribute to like-minded populism in other countries, and ally themselves with autocracies in weakening international institutions that they regard as constraining.

These risks are reinforced as the number of populist governments increase, and especially when populists gain power in countries that have previously provided important support to the international human rights system. The populist shocks within the European Union and the extreme disorientation of US values brought by the 2016 election portend grave obstacles for the international protection of human rights.

Footnotes

1 Jan-Werner Müller, What Is Populism? (Philadelphia, PA: University of Pennsylvania Press, 2016), 19–20.

2 Cas Mudde, “Populism: An Ideational Approach,” in The Oxford Handbook of Populism, ed. Cristóbal Rovira Kaltwasser et al. (Oxford: Oxford University Press, 2017), 29.

3 Müller, Populism, 23.

4 Cas Mudde and Cristóbal Rovira Kaltwasser, “Exclusionary vs. Inclusionary Populism: Comparing Contemporary Europe and Latin America,” Government and Opposition 48, no. 2 (2013): 166; Mudde, “Ideational Approach,” 33.

5 Kurt Weyland, “Populism: A Political-Strategic Approach,” in Oxford Handbook of Populism, 48–72; Steven Levitsky and James Loxton, “Populism and Competitive Authoritarianism in the Andes,” Democratization 20, no. 1 (2013): 110.

6 See Ernesto Laclau, On Populist Reason (London: Verso, 2005); Yannis Stavrakakis, “Populism and Hegemony,” in Oxford Handbook of Populism, 535–553.

7 Compare Chantal Mouffe, For a Left Populism (London: Verso, 2018) (arguing that this kind of left populism can be consistent with pluralism and that it would reinterpret but not reject the ethico-political principles of liberal democracy), with Carlos de la Torre, “What Went Wrong? Leftwing Populist Democratic Promises and Autocratic Practices,” Comparative Politics Newsletter 26, no. 2 (2016): 40–45.

8 Nadia Urbinati, Democracy Disfigured: Opinion, Truth, and the People (Cambridge, MA: Harvard University Press, 2014), 130–132.

9 See, e.g., Chapter 9 (in this volume); Peter Mair, “Populist Democracy vs Party Democracy,” in Yves Mény and Yves Surel, Democracies and the Populist Challenge (Houndmills, Basingstoke: Palgrave, 2002), 81–98 (arguing in favor of “populist democracy” that deemphasizes parties but respects constitutionalism); Mark Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 2000); Gregory P. Magarian, “The Pragmatic Populism of Justice Stevens’s Free Speech Jurisprudence,” Fordham Law Review 74, no. 4 (2006): 2201–2240.

10 See, e.g., Jeffrey D. Sachs, Social Conflict and Populist Policies in Latin America, Cambridge, MA: National Bureau of Economic Research, Working Paper No. 2897 (1989); Weyland, “Political-Strategic Approach,” 51; cf. Cristóbal Rovira Kaltwasser et al., “Populism: An Overview of the Concept and the State of the Art,” in Oxford Handbook of Populism, 14 (excluding this category from the handbook).

11 See, e.g., Committee on Economic, Social and Cultural Rights, Public Debt, Austerity Measures and the International Covenant on Economic, Social and Cultural Rights, UN Doc. E/C.12/2016/1 (2016); Report of the United Nations High Commissioner for Human Rights, UN Doc. E/2013/82 (2013) (report on austerity measures and economic and social rights).

12 See Kenneth M. Roberts, “Populism as Epithet and Identity: The Use and Misuse of a Contested Concept,” Comparative Politics Newsletter 26, no. 2 (2016): 69–72; Roger Cohen, “It’s Time to Depopularize ‘Populist,’” New York Times, July 14, 2018.

13 Mudde and Rovira Kaltwasser, “Exclusionary vs. Inclusionary Populism,” 148.

14 See Kirk A. Hawkins et al., “Populism and Its Causes,” in Oxford Handbook of Populism, 267–286 (summarizing approaches).

15 Pippa Norris and Ronald Inglehart, Cultural Backlash: Trump, Brexit and Authoritarian Populism (Cambridge: Cambridge University Press, 2019).

16 Noam Gidron and Peter A. Hall, “The Politics of Social Status: Economic and Cultural Roots of the Populist Right,” British Journal of Sociology 68, no. S1 (November 2017): S57–S84 (online special issue).

17 See Chapter 7 (in this volume); see also Marcus Mietzner, “Movement Leaders, Oligarchs, Technocrats and Autocratic Mavericks: Populists in Contemporary Asia,” in Routledge Handbook of Global Populism, ed. Carlos de la Torre (Abingdon: Routledge 2019), 381 (“rather than economic decline, it was the side effects of economic growth that facilitate the rise of third-generation populists in Asia”).

18 On the varying relationship between populism and women’s roles, see Sahar Abi-Hassan, “Populism and Gender,” in Oxford Handbook of Populism, 426–444.

19 See Luke March, “Populism in the Post-Soviet States,” in Oxford Handbook of Populism, 221 (describing Vladimir Putin’s later phase as anti-populist). But on China, see Elizabeth J. Perry, “The Populist Dream of Chinese Democracy,” Journal of Asian Studies 74, no. 4 (2015): 903–915.

20 See Carlos de la Torre, “Populism in Latin America,” in Oxford Handbook of Populism, 202, 204; Asa K. Cusack, Venezuela, ALBA, and the Limits of Postneoliberal Regionalism in Latin America and the Caribbean (New York: Palgrave Macmillan, 2019), 10–11.

21 See, e.g., C.R.G. Murray, “Monstering Strasbourg over Prisoner Voting Rights,” in Human Rights in the Media: Fear and Fetish, ed. Michelle Farrell, Eleanor Drywood, and Edel Hughes (Abingdon: Routledge, 2019), 101–126.

22 See, e.g., “Brexit and the British Bill of Rights,” ed. Tobias Lock and Tom Gerald Daly (2016), available at https://livrepository.liverpool.ac.uk/3006605/1/Brexit%20and%20Human%20Rights.pdf.

23 Depending on the details of the particular treaty regime, withdrawal may have only prospective effect, and may leave the state subject to international obligations with regard to violations that have already occurred before the withdrawal takes effect. See, e.g., Case of San Miguel Sosa v. Venezuela, 348 Inter-Am. Ct. H.R., para. 12 (2018) (citing ACHR art. 78(2)). Moreover, withdrawal from one procedural forum may leave the state subject to other avenues of redress.

24 See Antonio F. Perez, “Democracy Clauses in the Americas: The Challenge of Venezuela’s Withdrawal from the OAS,” American University International Law Review 33, no. 2 (2017): 391–476. During the two-year delay before the OAS withdrawal could take effect, its continuing validity became clouded by debate within the OAS over the legitimacy of Maduro’s reelection.

25 See Chapter 7 (in this volume); Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2018 (2018), 15.

26 Rubén M. Perina, The Organization of American States as the Advocate and Guardian of Democracy (Lanham, MD: University Press of America, 2015), 90–91.

27 Advisory Opinion OC-25/18, The Institution of Asylum, and its Recognition as a Human Right under the Inter‑American System of Protection (Interpretation and Scope of Articles 5, 22(7) and 22(8) in Relation to Article 1(1) of the American Convention on Human Rights), 25 Inter-Am. Ct. H.R. (ser. A) (2018). The Court responded favorably to Ecuador’s request by strictly defining its duties toward asylum-seekers in its embassies overseas. The Court declined Ecuador’s invitation to spell out the obligations of non-OAS states such as the United Kingdom, but did address the duties of other OAS states. OC-25/18, paras. 32, 59, 199. However, by the time the Court issued its opinion in May 2018, Ecuador had a new President and its relationship with Assange had changed, and ultimately Ecuador withdrew his asylum. See Charlie Savage, Adam Goldman, and Elaine Sullivan, “Britain Arrests Assange, Ending 7-Year Standoff,” New York Times, April 12, 2019.

28 Rosa Balfour et al., Europe’s Troublemakers: The Populist Challenge to Foreign Policy (European Policy Center, 2016), 35–36, available at www.epc.eu/documents/uploads/pub_6377_europe_s_troublemakers.pdf?doc_id=1714; Bertjan Verbeek and Andrej Zaslove, “Populism and Foreign Policy,” in Oxford Handbook of Populism, 393–395.

29 See Javier Corrales and Carlos A. Romero, U.S.–Venezuela Relations Since the 1990s: Coping with Midlevel Security Threats (New York: Routledge 2013), 24–26; Chávez’s subsidies also extended to Cuba. Corrales and Romero at 26–28.

30 See Péter Krekó and Zsolt Enyedi, “Orbán’s Laboratory of Illiberalism,” Journal of Democracy 29, no. 3 (2018): 39–51. Orbán also joined with Russia in fueling populist opposition to the compromise name “Republic of North Macedonia” that enabled that country to resolve its dispute with Greece and become a member of NATO, and Hungary helped the populist former prime minister Nikola Gruevski evade a prison term for corruption. See Patrick Kingsley, “Did Hungary Help Spring a Fugitive Macedonian Leader?,” New York Times, December 30, 2018.

31 Maja Jovanovska et al., “Right-Wing Hungarian Media Moves into the Balkans” (2018), available at www.occrp.org/en/spooksandspin/right‑wing‑hungarian‑media‑moves‑into‑the‑balkans. Of course, right-wing populists in Europe have also received various forms of direct and indirect support from Russia. See Anton Shekhovtsov, Russia and the Western Far Right: Tango Noir (Abingdon: Routledge, 2018).

32 See Cusak, ALBA; Ximena Soley and Silvia Steininger, “Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights,” International Journal of Law in Context 14, no. 2 (2018): 251.

33 See Perina, Organization of American States. After Lenín Moreno Garces succeeded Rafael Correa as President, he made significant changes in domestic and foreign policy, and Ecuador withdrew from ALBA in August 2018. See Carlos de la Torre, “Ecuador after Correa,” Journal of Democracy 29, no. 4 (2018): 77–88; “Ecuador Leaves Venezuela-Run Regional Alliance,” Associated Press, August 23, 2018, available at www.apnews.com/6a7d8ed8738a475d8b6c276ffa0b761e.

34 See Mónica Pinto, “The Crisis of the Inter-American System,” American Society of International Law Proceedings 107 (2018): 127–129 (2013); Katya Salazar, “Between Reality and Appearances,” Aportes DPLf 19 (April 2014): 17–18.

35 See Christen Broecker and Michael O’Flaherty, “The Outcome of the General Assembly’s Treaty Body Strengthening Process: An Important Milestone on a Longer Journey” (2014), available at www.universal‑rights.org/urg‑policy‑reports/the‑outcome‑of‑the‑general‑assemblys‑treaty‑body‑strengthening‑process‑an‑important‑milestone‑on‑a‑longer‑journey/ (discussing the efforts of the Cross-Regional Group to undermine the independence of the treaty bodies).

36 See, e.g., Raísa Cetra and Jefferson Nascimento, “Counting Coins: Funding the Inter-American Human Rights System,” in Camila Barretto Maia et al., The Inter-American Human Rights System: Changing Times Ongoing Challenges (Washington, DC: Due Process of Law Foundation, 2016), 53–94.

37 See Annabel Egan and Laurent Pech, “Respect for Human Rights as a General Objective of the EU’s External Action,” in Research Handbook on EU Law and Human Rights, ed. Sionaidh Douglas-Scott and Nicholas Hatzis (Cheltenham: Edward Elgar, 2017), 243–266; EU, Annual Report on Human Rights and Democracy in the World 2017 (2018), available at http://eeas.europea.eu/topics/human-rights-democracy/8437/eu-annual-reports-human-rights-and-democratisation_en.

38 See Alexei Jones et al., Aiming High or Falling Short? A Brief Analysis of the Proposed Future EU Budget for External Action, European Centre for Development Policy Management Briefing Note No. 104 (2018), https://ecdpm.org/wp‑content/uploads/ECDPM‑2018‑BN‑104‑Analysis‑Proposed‑Future‑EU‑Budget‑External‑Action.pdf.

39 See, e.g., Michael Schwirtz and Rick Gladstone, “U.S. Vetoes U.N. Resolution Condemning Move on Jerusalem,” New York Times, December 19, 2017 (describing the veto of a Security Council resolution criticizing Trump’s recognition of Jerusalem as the capital of Israel).

40 Norris and Inglehart, Cultural Backlash, 76.

41 E.g., Steven Levitzky and Daniel Ziblatt, How Democracies Die (New York: Crown, 2018).

42 “The Inaugural Address,” https://www.whitehouse.gov/briefings‑statements/the‑inaugural‑address/; see Max Greenwood, “Miller and Bannon Wrote Trump Inaugural Address,” The Hill, January 21, 2017, http://thehill.com. Bannon was pushed out of the White House after the neo-Nazi violence in Charlottesville in August 2017, but Miller remained. Bannon subsequently moved to Europe, where he has tried to become the leader of an international right-wing populist network. See Jason Horowitz, “Bannon Takes on Europe, with Populist Toolbox in Hand,” New York Times, March 10, 2018.

43 “Remarks to U.S. Department of State Employees,” https://www.state.gov/remarks-to-u-s-department-of-state-employees/.

44 See “Remarks by Mike Pompeo, Secretary of State and Nikki Haley, U.S. Permanent Representative to the United Nations,” https://geneva.usmission.gov/2018/06/21/remarks‑on‑the‑un‑human‑rights‑council/. The United States has nonetheless continued to participate in the Universal Periodic Review as a nonmember of the Council.

45 See “Remarks by President Trump to the 73rd Session of the United Nations General Assembly, New York, NY,” https://www.whitehouse.gov/briefings‑statements/remarks‑president‑trump‑73rd‑session‑united‑nations‑general‑assembly‑new‑york‑ny/ (2018).

46 The United States pulled out of the negotiations for the Global Compact on Safe and Orderly Migration in December 2017, claiming that it would be incompatible with US sovereignty. Subsequent to Trump’s September 2018 speech, his administration extended its opposition to the Global Compact on Refugees as well. Only the United States and Hungary voted against the latter in the General Assembly.

47 See Advisory Opinion OC‑23/17, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), 23 Inter-Am. Ct. H.R. (ser. A) (2017); Human Rights Committee, General Comment No. 36 (2018), on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36 (2018) (advance unedited version), para. 62; Committee on Economic, Social and Cultural Rights, General Comment No. 15: The right to water (arts. 11 and 12 of the Covenant) (2002), in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008), 97-113; Committee on the Elimination of Discrimination Against Women, General Recommendation No. 37 (2018), on the gender-related dimensions of disaster risk reduction in the context of climate change, UN Doc. CEDAW/C/GC/37 (2018).

48 See, e.g., Union of Concerned Scientists, Science under Trump: Voices of Scientists across 16 Federal Agencies (2018), www.ucsusa.org/2018survey.

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